I welcome Mr. John O'Connor, chairman of An Bord Pleanála, and his colleagues. Today's discussion will deal with the 2004 annual report of the board. I invite Mr. O'Connor to make his presentation.
An Bord Pleanála: Presentation.
Mr. John O’Connor
I presume there is no need for me to introduce my colleagues as their names are displayed. The board welcomes the invitation from the joint committee to discuss its annual report for 2004. In accordance with section 118 of the Planning and Development Act 2000, the report was sent to the Minister for the Environment, Heritage and Local Government by 30 June 2005.
The year 2004 saw a strong increase in the intake of appeals, up 11% on 2003. Despite that significant increase, the timeliness of the board's decision making continued to improve and came within reach of its strategic target of determining 90% of all cases within 18 weeks. However, the strong trend in cases received resulted in an increased workload on hand at the end of the year — up 11% on 2003. Cases determined during 2004 were up 6% on the previous year and the 18-week statutory objective was met in 85% of cases compared to 74% in 2003. The average time taken to decide cases fell by about two weeks to 14 weeks.
The number of board members fell from 12 in 2003 to ten. Our authorised staff complement reduced from 138 to 136.5. The board continued to experience difficulties in recruiting and retaining professional planners and the average number of staff over the year was 128.
Other noteworthy features in 2004 were the percentage of local authority planning decisions appealed to the board reduced to 6.9% from 7.2% in 2003. The figure of 5.5% referred to in the annual report is incorrect as an error has been discovered in appendix 2; the rate of reversal of local planning authority decisions appealed showed a slight increase — 32% in 2004 compared to 30% in 2003. The large disparity between local authorities in the rate of reversal, apparent in previous years, continued in 2004 as is shown in appendix 2 of the report.
Approximately half of planning appeals lodged with the board came from third parties. A total of 20% — it was 22% in 2003 — of all appeals were invalid with late appeals at 6.6%, third party appeals with no acknowledgement at 6%, and no name or address at 2.3%, being the main reasons. The board took additional measures in 2005 with a view to improving the quality of service to customers and to reduce the rate of invalid appeals. There were 156 applications for leave to appeal by third parties of which 21% succeeded.
The board's expenditure increased by 13% to €14.94 million in 2004. Fee income amounted to €1.67 million, which is approximately 11% of expenditure, and the recoupment of costs from local authorities in regard to the determination of their sponsored infrastructure projects resulted in €450,000, that is, 3% of expenditure.
On present trends in 2005, the intake of cases in all categories is likely to top 6,000, which would, by some margin, be an all-time record. I have circulated an annex to the members showing the intake of previous years. Intake for the period to the end of October has increased by 14% over the corresponding period in 2004, and has increased by 27% over a two-year period. While the rate of disposals has increased by 6% over the corresponding period last year, because of the strong trend in cases received both this year and last, the number of cases on hand has increased by 33% over the number for October 2004. The average time taken to dispose of cases increased to 14.8 weeks and the percentage disposed of within the statutory objective period fell to 80%.
The board is taking all possible measures, including increasing productivity, to ensure that a serious backlog does not recur and to return as soon as possible to achieving its overall strategic objective to dispose of 90% of cases within 18 weeks. The board regrets the delays that are occurring in some appeals at present but is seeking to put in place additional resources.
It appears that the surge in the volume of appeals reflects the general increase in planning applications to local authorities and is not due to an increase in the rate of appeal. The increase in planning activity appears to be due to a continuing strong trend in the number of housing schemes being proposed throughout the country, the time deadlines imposed on tax incentive developments and a general densification of development in built-up areas of cities and towns, especially the large towns. The number of appeals relating to larger housing schemes, with over 30 units, on hand at the end of September was almost 40% higher than that of last year.
The board's experience is that the size and complexity of cases continues to increase and this in turn places additional pressures on our resources. The increase in the size and complexity of cases along with the increased intake in cases viewed against a relatively static level in staff numbers represents a significant efficiency gain in productivity within the organisation. This reflects the resourcefulness and dedication of board members and staff.
Major infrastructure projects come before the board either by way of planning appeal, where they are privately sponsored, or by way of direct approval, where they are local authority-sponsored. The average time taken to decide local authority projects formally in 2004 was 22 weeks compared with 26 weeks in 2003. Most of these cases are subject to the oral hearing process. The board is maintaining this improved level of performance in 2005. At present, there are three national road cases awaiting determination by the board and the oral hearings have been held in two of these. The closing date for objections for the other case was in mid-November and the oral hearing is scheduled for December or early in the new year. When these cases are determined, the board will have issued determinations in respect of the remaining unimproved sections of the inter-urban national primary roads, which include the roads to Belfast, Galway, Limerick, Cork and Waterford.
To date this year, 80% of private infrastructure planning appeals were reported to the board within 17 weeks of the appeals being received. Overall, the board considers that it is discharging its functions regarding infrastructure projects within satisfactory timescales in the context of existing legislation. Members will be acutely aware that there is a strong tendency for infrastructure cases, particularly in the waste area, to be challenged by way of judicial review after the board's decision and this can be a source of major delays. However, no board decision on any such case has been overturned by the courts to date.
The board has responded positively to the announcement by the Minister for the Environment, Heritage and Local Government that he intends to introduce a strategic infrastructure Bill to streamline and speed up the process of procuring planning approval for projects of national strategic importance. We are co-operating with the Department in drafting the detailed provisions of the legislation and will be gearing up in terms of organisation and resources so we will be in a position to handle the new functions seamlessly. The board notes the Minister's assurance that the new legislation will not involve any diminution in the rigour of assessment of projects or in the degree of public participation in the process.
At the last meeting of the committee, I mentioned that a major review of the board's organisation and structure by management consultants was due to be presented to the board. This review was commissioned following the transfer of functions from the Minister to the board relating to local authority infrastructural projects.
After the report on the review was received, the board entered extensive discussions with staff interests and, in April 2004, made proposals to the Department, based largely on the recommendations of the consultants, seeking approval to changes in the structure and staffing. Such changes, by law, must have the approval of the Minister given with the consent of the Minister for Finance. The trade union representing staff brought the issue to the Labour Relations Commission and while the board has made an offer to the union on staffing and structures, the matter is still before the commission.
Apart from making proposals arising from the consultants' report, the board sought further sanction to increase its staffing levels in view of the strong increase in intake in 2004 and 2005 and the continuing change in the size and complexity of cases. I am pleased that sanction to a significant increase in staff on a phased basis has now been received.
As requested by the Minister at the time of their publication in March 2004, the board had regard to the draft planning guidelines on sustainable rural housing in deciding appeals in relation to one-off houses in rural areas. The guidelines proper were issued in April 2005. Generally, in line with the guidelines, the board takes a positive attitude, subject to compliance with site-specific good planning principles, to locally based rural generated housing needs. A survey of appeals relating to one-off rural housing developments decided from March to December 2004, and to which the guidelines were relevant, is contained in Appendix 6 of the annual report.
The board continues to rely on part-time consultant inspectors to report on cases. We expect that up to 40% of reports in 2005 — it was 35% in 2004 — will come from this source. With the recent approval for additional staff resources, we anticipate that our reliance on outside inspectors will reduce.
The board introduced measures to improve its customer services, including a complaints system in respect of decided cases. In addition to measures set out in our customer services action plan for 2004 to 2009, the board introduced an internal committee to review correspondence on decided cases. Such correspondence generally relates to complaints or seeks clarification of aspects of our decisions. In 2004, over 240 cases have been dealt with by the committee. It has proved to be a valuable tool for the board as it provides a structured feedback system which in turn helps to improve the quality and consistency of our procedures and decision making.
It is nice to see the delegates present but I am not quite sure of the functions they carry out on the board. Are they members?
Mr. O’Connor
Perhaps I should have introduced them at the beginning. I am accompanied by Brian Hunt, deputy chairperson of the board, Paul Mullally, chief officer, Tom O'Connor, chief planning advisor to the board, and Diarmuid Collins, secretary to the board.
I thank Mr. O'Connor. An Bord Pleanála is obviously held in great esteem by many. It is good that its representatives are present and it is important that we have this interaction.
A few problems come to my attention. An Bord Pleanála, as a planning authority, is faced with the decisions of local authorities, development plans and their limitations. This can lead to difficulties, such as those that arise in respect of rural housing, which Mr. O'Connor addressed. It is obviously much more important to have people living in areas where the populations are in decline than in areas where they are growing very significantly. This creates its own problems. It creates problems in County Louth where one has no way of obtaining a house if one's parents or grandparents did not come from the county. However, those from the area have a monopoly. I do not know if the board has thought about this or believes it should address it. It is leading to increasing frustration among many of my constituents.
Where the board effectively decides to overrule inspectors' reports, a power it should have and that it only exercises after great consideration, Government policy is the reason it sometimes gives. I do not see that as sustainable. More information should be released when the board comes to such a decision. A member of the board decides the application and that person signs the decision but it does not necessarily contain all of the arguments as to why that decision was made. There should be greater transparency in that area. I do not question the board's authority to do this but it creates controversy in major waste projects, such as incinerators, that inspectors have recommended should not be sited after days or weeks of hearings. How do we know all of the information has been properly considered when the reasons given have nothing to do with the recommended reasons for refusal by the inspector?
I appreciate that the board will employ more full-time staff. Are many of the consultants from outside the State? Is the board satisfied that they are fully tuned in to the issues?
Mr. O’Connor
Rural housing is a perennial issue and it is always raised when we come here. Last year in areas of population decline, only 16% of the appeals we received related to one-off housing are in weaker areas. Of the four categories in the guidelines strong urban influence is by the far the predominant category. Much of County Louth would be under strong urban influence, although there would be areas that fall under the other categories, possibly strong rural areas. The guidelines set down more stringent criteria for granting permission in the case of areas under strong urban influence. The closer an area is to a strong urban centre, the greater the pressures and the more stringent the guidelines. Where there is a strong, local, rural-generated housing need, however, the board tends to grant permission, even when it is an area under strong urban influence.
Approximately 30% of cases are refused for settlement reasons, where the board does not accept the bona fides of the case made by the applicant. We have cases where the local authorities have granted permission on the basis of what appears to be a strong case for rural-generated local housing and when our inspector goes out there is a for sale sign on the site. There must be some balance. The number of appeals coming into us in weak rural areas is low, about 16%.
I accept that. When the board designates certain categories of people who can apply by virtue of domicile or family background, however, they become the only people in an area who can get permission. Even if a regulation stipulates that they must live there for five years, if a person is not in the select group that fulfils the criteria, he or she can never get permission and only those who do fulfil the criteria can get everything.
Mr. O’Connor
They can only build in a settlement or close to an area that is designated as a settlement in the development plan. There are many of these. Any kind of settlement at all is designated in the plans, even very small places.
It is a criticism I often hear.
Mr. O’Connor
I can appreciate it is a controversial issue and the board is well aware of that. The board takes the guidelines seriously.
The overruling of inspectors' reports by the board was mentioned. To put that in context, the percentage of cases where the board overrules the inspector and reverses a recommendation to grant or refuse is less than 12%. That has not changed much over the years, even with outside inspectors. The legislation gives the final decision to the board and the board takes that seriously. The inspector's report is one input, a very important input, but in law the decision rests with the board.
The board is obliged under the 2000 Act to state the reason it disagreed with the inspector. The Deputy's point is that it does not recite the reasons adequately to explain the position to outsiders but it is difficult to achieve a balance. The board must go through 6,000 cases a year and we do not have the luxury of being able to make a report like a High Court judgment in every case. We do our best to explain why we disagree with the inspector. I remind board members of this because the decision must be made in large cases by the full board.
There have been cases where An Bord Pleanála has reconvened more than once to make a decision on a waste management project. There is obviously controversy taking place. I am not challenging the end decisions, I am challenging the lack of transparency about what is happening and the arguments being made, particularly when many of these planning hearings can go on for weeks, demonstrating how strongly people feel.
Mr. O’Connor
The board tries to explain where it is in coming from in these issues.
There should be a much more effective way to communicate the final decision and recite the arguments that brought the board to the position it took.
Mr. O’Connor
There are constraints on us but I take the point.
The Deputy also mentioned outside consultants and our reliance on them. Roughly half of the consultants come from outside the State but they are trained here, supervised and their reports are signed off by a deputy planning officer within the board to ensure they meet basic standards. They are professional planners and have the same qualifications as would be necessary to apply for a permanent job on the board. They would be skilled in reading development plans and taking account of local planning policies as set out in those plans. The rate of overturn of their recommendations is not much different from the general rate.
I join the Chairman, Deputy O'Dowd and others in welcoming the delegation from An Bord Pleanála to the committee. I wish to pursue a few issues arising from the presentation. Mr. O'Connor gave the committee the number of staff and board members in 2003 and 2004. Will he give it the current numbers?
More than one of five appeals was shot down because the paper work was deficient in some respect. This is a real problem for members of the public. A constituent of mine submitted a planning appeal against the local authority to Bord Pleanála which threw it out because he included the local authority receipt for €20 rather than its letter of acknowledgement.
Architects tell me there is a new regime at local authority level for planning applications such that if the paperwork is not absolutely right, the drawings are not exactly the right size, or the staple in the paper is wrong, they are dismissed. The emphasis appears to be on getting the paperwork rather than the planning right. It does not make sense that issues that should receive consideration from a planning point of view are thrown out. One in five is a high proportion. Has An Bord Pleanála made any observations to the Department about changes that might be made and will it share those with us? The Planning and Development Act 2000 tightened up this area by introducing various new rules and traps and so on. Changes need to be made to avoid such a high number of often serious and valid issues being shot down on technicalities.
It is an open secret that the board and the Department had issues about what the critical infrastructure Bill should include. We have not seen the Bill but I understood it would be published early in the new year. We have a letter from the Minister on a separate matter in which he tells us the Bill is his first legislative priority. I am surprised to learn from the board's submission today that it is still involved in drafting that legislation with the Department. We have been led to believe the substantive issues of concern to the board have been resolved. I would like to hear more about that.
I appreciate the work and efficiency of the board and the effort it makes to meet its targets, given the increased volume and complexity of its work, staffing constraints and difficulties coping with new legislation. There is a public perception, however, that the independence of An Bord Pleanála is compromised. That does not refer to the members or employees of the board whose integrity commands respect but it is perceived as being compromised by Government.
The board's role has changed dramatically. It is no longer simply the place one goes when one is not happy with a local authority decision on a planning permission. It now has a proactive role in infrastructural development. The powers and functions of the Minister for the Environment, Heritage and Local Government in respect of major road and infrastructure development have been transferred to Bord Pleanála which is now becoming part of the problem. It used to be the place people went if they did not like a development but now it approves the roads, incinerators and waste facilities. There is also a perception that it gives undue emphasis to Government policy. We know it was obliged to take Government policy into account but the perception is developing that the board generally does the bidding of Government. This is not fixed on any particular project but to the roads, motorways and incinerators which must be built.
I appreciate the board will not talk about individual cases but Deputy O'Dowd referred to cases where the board overturned its inspectors' recommendations. That caught my attention as well and it appeared the board was following a pattern. At a time of large-scale housing and commercial and infrastructural development, the board is no longer the place to lodge an objection because it is giving the first approval. That undermines public confidence in the board's independence. I will be interested in the board's response to that comment.
Is it true that An Bord Pleanála has approved every road proposal from the National Roads Authority, NRA, and does that tell us something about its role? Mr. O'Connor can link his reply to that question with his reply to Deputy Gilmore.
Mr. O’Connor
It is not true. One such proposal was refused outright, parts of others have been refused and major changes have been prescribed for others. The board has asked the NRA to come back with revised proposals in one major scheme.
I am interested in Mr. O'Connor's reply to the general question.
Mr. O’Connor
I will try to reply to Deputy Gilmore's comments in the order in which he made them. The membership of the board is ten, evenly balanced between men and women.
What is the staff complement?
Mr. O’Connor
Our staff complement is 136.5. Nowadays staff numbers come in fractions as well as cardinal numbers.
Is the 0.5 figure male or female?
Are they equally balanced too?
Mr. O’Connor
We have been concerned about invalid appeals for some time. The Deputy is right to say the rate increased following the 2000 Act. That is why we introduced a pack to assist people making appeals. The trouble with appeals is that the legislation is very prescriptive, especially for third party appeals. If the board does not adhere strictly to the letter of the law, the developer will seek a judicial review. Experience shows that the court will adhere strictly to the requirements. If the law requires a letter of acknowledgement one must have that letter.
We can see this is not good for planning but we have stuck to the legal requirements and all we can do is make the requirements clear to people. For example, it can be difficult to get the date right for the four-week period to submit late appeals. Our chief officer can explain this in more detail. We have put dates on our website. It is possible to key in certain information and to be told the latest dates for appeals. We also have an information pack which is sent out by the planning authorities to assist people who want to make an appeal.
Mr. Paul Mullally
We are very aware of invalid appeals. The objective is to reduce the rate of invalid appeals. We have sent out facts to each planning authority in the country, asking them to include certain information when notifying their decisions. We are confident that if this is done and a person uses this mechanism, it is very unlikely that an appeal will be invalid. We have made it very simple, step by step. We have also put a ready reckoner on the website. One just inputs the date of the decision and the last date for receipt of an appeal will be calculated, having regard to weekends, public holidays and other days that our offices are closed. We believe that this is a failsafe method.
We recognise that everyone will not have access to a website, so we have given very practical examples in the appeals pack of the last date for an appeal when a decision falls on a particular day. The question of acknowledgements has been a problem for us. Most acknowledgements include a receipt. On occasion, however, various letters are issued by local authorities and it is not always clear to us that these are acknowledgements of submissions in respect of particular applications. The law is clear that there must be an acknowledgement. As part of this procedure, when the rules first came in, we suggested to the Department of the Environment, Heritage and Local Government that it should introduce a standard acknowledgement form. The Department issued guidelines to every local authority stipulating that it should use this form. It is a standard format. It is a matter for the individual local authorities to use them. If they use them, there will be no problem.
Mr. O’Connor
Perhaps the new aids system we have introduced has not yet had time to work. The Department of the Environment, Heritage and Local Government is fully aware because it gets all the figures in this regard. We are dealing with primary legislation to a large extent, which would have to be changed, if any of the basic requirements were departed from.
On the strategic infrastructure Bill, the Deputy expressed some surprise that the Department was consulting the board as on the detail of the legislation. It is good that the Department consults the board on the detail of the legislation because we must ensure it will work, practically, on the ground. The board has the experience in terms of the practical application of the Bill's provisions. We were glad to have had the opportunity to make an input into the details of the legislation. When it comes before the Oireachtas, I am sure the Deputy will make his own input into it. I do not have much more to say on that. I know it is being worked on and we are giving any assistance we can.
On the Deputy's third point about the independence of An Bord Pleanála, we are aware that the board's role in local authority projects which are submitted directly and not on appeal has changed. It will probably change further if the proposals in the critical infrastructure Bill become law. That is something we must cope with. If functions are given to the board, it must deal with them as best it can. It is a matter for the Legislature to decide whether it is proper that these functions are given to the board. Once they are given to the board it must carry them out. All we can do is ensure that they are carried out in an open, transparent, balanced, fair and impartial manner.
We need to have regard to Government policy but that does not mean we grant everything. We have refused projects which perhaps the Government wanted passed. That is no secret. I would be sorry if anything were to interfere with public confidence in the board. Over its 25 years in existence An Bord Pleanála has built up a good reputation. I would be quite distressed if, in my term as chairman, anything happened that diminished public confidence in the board. Obviously people will disagree with individual decisions. That is the nature of the business where two parties vigorously contest an issue. In general the people who lose a decision feel aggrieved. Overall, I would be disappointed if anyone, on reviewing the board's performance in the round, did not conclude that it had given due consideration and a balanced hearing to all sides — regardless of whether ultimately they might disagree with a particular decision.
That is all I can say. I do not know whether it is any reassurance to the Deputy. When the legislation comes before the House, I am sure he will have more to say on the subject.
On a general note, I certainly welcome the visit by the board to the committee and appreciate its performance in coping with the unprecedented volume of appeals in recent times.
I want to concentrate on recent information that came into the public domain through the publication by the Centre for Public Inquiry, Fiosrú an Phobail, into the Corrib gas field. I wish to address information that came onto the board's website just yesterday relating to the level of access that was given to An Bord Pleanála in this regard. Over the 30 years of its existence, the board has prided itself and its reputation has rested on its quasi-judicial status and especially on its complete independence from Government and outside influence. I therefore find it disquieting to see the level of access that was granted to the private sector at a time of raging public controversy surrounding the Corrib gas field. Has it always been the case that the board meets various stakeholder groups? Will An Bord Pleanála clarify the degree to which it meets such groups?
I was taken aback by the level of access that the oil industry had to the board. I was also taken aback by the assurances given at a meeting with the oil industry and the Taoiseach that an appeal would be addressed swiftly by the board. The Taoiseach had no business giving that type of assurance to the effect that the board would be able to deal swiftly with an issue. Has the board a view on that?
I also note that at a meeting between the Taoiseach and oil industry executives it was stated that all possible steps would be taken by the board to ensure that any such appeal would be processed with all possible speed with a view to giving a final decision on it within the statutory period of 18 weeks. It seems curious that the Department of the Environment, Heritage and Local Government could give that type of assurance. Perhaps the board can clarify what communications took place between it and the Department of the Environment, Heritage and Local Government so that An Bord Pleanála was able to give such an assurance on the issue.
It seems curious too that four days after that meeting on 19 September 2003, the board met the Shell executive, Mr. Andy Pyle. The meeting, more precisely, was with the Irish Offshore Operators' Association, but surely there was an elephant in the corner on that occasion, namely, the Corrib gas field.
I note that Mr. Mullally said in a letter dated 15 July 2003 that as regards stakeholder meetings: "It is the policy of the board not to discuss individual projects, whether they are the subject of an extant application appeal, at pre-planning stage or have been the subject of a planning decision or otherwise." This was stated clearly, yet the board had refused permission in April 2003 for the Corrib gas terminal. A meeting took place with the board and the Irish Offshore Operators' Association in September 2003 and then a year later An Bord Pleanála approved a planning application for the Corrib gas field. It appears to me that the timelag was far too close for comfort between a refusal and the board's decision a year later to meet such a group. Can the chairman of the board clarify what was discussed in that meeting?
I note the minutes on the board's website today. The Irish Offshore Operators' Association made a Powerpoint presentation to the board on the case for indigenous gas. Can the chairman give the committee the details of that presentation? It states that details of that presentation are given in an appendix. I could not find that appendix on the board's website this morning. It seemed to me a very curious time for the board to be engaging in such a direct matter with the stakeholder. How many meetings have been requested by these stakeholder groups? Are all requests granted? What criteria are used in granting such requests? With whom are these meetings held?
I was very taken aback that oil industry representatives were able to come in and sit down with the board at such a turbulent time. That meeting has damaged confidence in the board and it sends out all the wrong signals to the community in Mayo who felt that they were engaged in a difficult issue and that it was difficult to access the powers that be. It certainly seems to me that the board was under significant pressure at that time. I wonder if the chairman of the board agrees with me.
Was the board happy to meet the Irish Offshore Operators' Association at that time given that an appeal had been refused in the recent past? It was very clear to the board that there would be a fresh planning application and a fresh appeal within a matter of months. Can the chairman clarify what was in that presentation by the operators? Those at the meeting included Mr. Andy Pyle from Shell and the main oil industry people in Ireland. I can only assume that significant pressure was being applied on the board.
We are here to discuss the 2004 annual report. I am conscious of the fact that the report was published just this week. The committee will understand if the witnesses do not have all the answers to those questions.
Mr. O’Connor
I will try my best. The sentiments expressed by Deputy Cuffe resonated with me yesterday when I saw the report of the Centre for Public Inquiry. I immediately realised that it would reflect on the independence of the board. That is why the board issued a statement yesterday which is carried in all today's newspapers. The statement tries to assuage any fears that might arise out of the report. There was a certain amount of insinuation which was unjustified.
The board meets openly and we have made no secret of the fact that we meet interest groups. Each year in our annual report we list the groups we meet during the year. For example, in 2004 we met three groups and seven groups in 2003. We meet the quarry association, IBEC, environmental groups, the Heritage Council and anyone who has a genuine interest in planning matters. Such people can discuss general issues with the board about the planning process and so on. We do not have a problem with that. In fact, we think it is good. Everyone understands where we are coming from and we have a better understanding of people's problems in the different sectors outside the board. Such activity should not be confused with any lack of independence on the part of the board.
The board did not discuss the project in question. It was made very clear in the letter to the interest groups that they would not be allowed discuss any particular project. I assure the Deputy that there was no discussion of individual projects at the meeting. There was a presentation from the Irish Offshore Operators' Association on the importance, from their point of view, of oil and gas to the economy and country, along with the environmental benefit of gas and so on. Most of the meeting was taken up with the presentation. Yesterday we published the full minutes of that meeting so that people would be clear that we were hiding nothing.
There was a connection made between the meeting the Taoiseach had with Shell and the meeting we had with the Irish Offshore Operators' Association a week later. Representatives of Shell wrote to us last June and we replied in July informing them that we could have a meeting in September. To make a connection between these two meetings is completely wrong. We deal with our business and the Taoiseach deals with his business.
I accept that the request for the meeting came many months previously.
Mr. J. O’Connor
It was also arranged many months previously.
The date had been confirmed.
Mr. J. O’Connor
There is a certain inference that the gas company met the Taoiseach and within a week the company met the board and that these meetings were juxtaposed deliberately. That is not the case. The board does its own thing independently and it did so in this case as well. We published the minutes of the meeting, including the presentation that took place. I have a copy of the presentation that was made by the Irish Offshore Operators' Association. I have no problem in giving it to the committee.
The Deputy spoke about the elephant in the corner. We did not talk about the elephant.
I wish to ask a few brief supplementary questions. I should declare that I was an applicant to the board in the case for the second terminal decision. While I agree with Mr. O'Connor's general comments about An Bord Pleanála, I feel that the independence of the board has been utterly compromised. As an applicant in that particular case, I had no opportunity to make——
Mr. O’Connor
The Deputy was an appellant.
Excuse me. As an appellant, I had no opportunity to make a 30 minute presentation to the board on the broad merits of the case that I wanted to put forward. Three specific companies engaged in that development along with an industry representative who made strong submissions on the particular development in previous board hearings. Unfortunately, that represents a complete compromising of the independence of the board and a different treatment of the appellants compared with the proposed developers.
Mr. O’Connor
That is not the case because we did not discuss the application with them. There was no application before us.
There is only one development in the Irish offshore energy industry and that is the development in question. There is no other development.
Mr. O’Connor
There could be others.
There are no other elephants for consideration. The Minister constantly repeats it. This is the only offshore energy development. At that meeting, they could only have been speaking about one particular development. Why did the board only yesterday make public the circumstances and the reality of that meeting? In refusing my application for an oral hearing in this case, why did the board not refer at any stage to this meeting that occurred in secret until we heard about it?
Mr. O’Connor
We never made a secret of that. We gave the Centre of Public Inquiry all the documentation in this regard. There was never a secret in regard to this matter.
How would I have known that this meeting had taken place, as one who had an interest in the development?
Mr. O’Connor
It is in our annual report. For the sake of openness and transparency our annual report always lists any groups we meet during the year.
Could I have a copy of the report?
Mr. O’Connor
To say that we were hiding the information or making a secret of it would be very wrong.
Does the annual report refer to who attended the meeting and what the minutes were?
Mr. O’Connor
No, it does not but it refers to the fact that the meeting took place and with whom. The minutes were available to anyone who asked for them. We keep minutes of meetings with any group. Sometimes, the minutes are requested. We do not make applicants use freedom of information legislation. We provide the minutes. We are as open an organisation as one can deal with. We must be, for the reasons referred to by the Deputy.
Open or otherwise, does Mr. O'Connor agree that at all times when the board is accessing an application, it should treat both sides equally.
Mr. O’Connor
Absolutely, yes.
The ability of one side to an application to make an oral presentation to the An Bord Pleanála results in unequal treatment of the two sides, given the inability of the other side to make a presentation.
Mr. O’Connor
To be fair, we had one of the longest hearings in the history of the board in regard to the first appeal on that project. I am not sure whether the Deputy was involved at that time.
The issue we are discussing is the second appeal. The concurrence of the meeting in between those two appeals is what is of concern.
Under section 32 of the latest Gas Act, it is an obligation that An Bord Pleanála as a prescribed body is informed of compulsory purchase acquisition orders for pipelines in process. In June——
Mr. O’Connor
I am sorry. Did the Deputy ask whether we were informed——
I asked whether An Bord Pleanála is informed of compulsory purchase acquisition orders.
Mr. O’Connor
We have no function in that process.
It is required under the legislation that An Bord Pleanála is informed of such applications.
Mr. O’Connor
I am not aware or that. I have never seen such a notification.
That is the point of my question. I will refer Mr. O'Connor to the specific legislation. Will he tell me whether the board has been informed, in the way required by statute, of such an application?
Mr. O’Connor
Certainly.
Would Mr. O'Connor not make the point, as was made by the board's inspector in the first appeal, that the two separate planning processes should always have been connected in terms of pipeline approval and terminal approval? These cannot be separated in any proper planning process and concern arises in this regard. Was the board aware that the pipeline application was on stream?
Mr. O’Connor
We were aware a pipe was coming into the project that would require different procedures from ours.
Was that an ongoing and highly contentious process?
Mr. O’Connor
Yes.
On the basis of that process being so contentious and disputed, does Mr. O'Connor consider it was inappropriate for him to meet the developers engaged in that process?
Mr. O’Connor
No. We did not meet them as developers of the project but as an industry group.
On a point of order, I am not a member of this committee but its agenda stated that An Bord Pleanála would discuss its annual report. I do not want to pass judgment on the pipeline in Mayo. I do not know who established or who comprises the Centre for Public Inquiry, which is not a statutory body. While Deputy Eamon Ryan is entitled to find out information from An Bord Pleanála, perhaps this is not the forum for doing so. He is operating an interrogation, as far as I can tell. I want to deal with the issues in the annual report.
I have sympathy for the point made by Deputy Timmins. The Green Party has ambushed the committee on this issue——
I had no intention of ambushing the committee.
——which concerns a report published only yesterday. I congratulate Mr. O'Connor for being so up-to-speed on the issue and for having the answers to questions which were put to him at short notice and were not predicted for this meeting.
I have no problem with the Green Party discovering the information. However, Deputy Ryan might perhaps wait until other members have an opportunity to contribute. This is like a court scene. He hit the An Bord Pleanála representatives with five or six questions, one after the other. When other members get a chance to contribute, he might then put his questions.
I take Deputy Timmins' point. I would finish with one final question, with the agreement of the committee. The Minister said that both sides benefited from the meeting. What did the board gain or how did it benefit?
Mr. O’Connor
We gained more information in regard to the exploration for gas and oil. That is all.
How many requests might not be honoured by the board? In others words, how many bodies might wish to-——
Mr. O’Connor
To my knowledge we have never refused a bona fide request from a genuinely representative group to meet the board with regard to planning matters. We have certainly refused requests to discuss individual decisions but, generally, representative groups, whether IBEC, the construction industry or environmental groups, understand we cannot discuss individual cases. We have no problem talking to any group about planning matters of mutual interest. As an exception, local authorities occasionally ask the board to attend county council meetings but we do not do that.
I assume residents associations would not make such requests.
Mr. O’Connor
I have never received a request from a residents association, which are usually focused on individual applications and usually seek an oral hearing. I have not encountered a request from a residents association to meet the board.
It is good to know the facility is there should they wish to address general issues of consequence with the board.
Mr. O’Connor
The facility is there for any group. Obviously, there is a limit. I would be concerned that every small residents group would wish to meet the board, which would put us under pressure.
Many people did not know the facility existed. Given that we now know that the door is open to the Irish Offshore Operators' Association, we should spread the news.
Mr. O’Connor
I would not overplay that.
We should spread the news that residents who often feel challenged by the legalities of the board might wish to address it on general issues.
Mr. O’Connor
As an example, if the umbrella group wants to meet us, there would be no problem.
That is good to know.
I wish to refer to rural housing. The report notes that, as requested by the Minister following publication of the March 2004 guidelines, the board should have regard to the appliance of the guidelines on rural housing. Is the board obliged to deal with appeals on rural housing relevant to the county development plan or those relevant to the Minister's guidelines? When the Minister issued the guidelines in 2004, most local authorities, including my own, believed they would have no effect because they had to deal with planning applications according to the county development plans. What is the board's relationship to the county development plans and the Minister's guidelines?
From March 2004 to December 2004, a period for which figures are available, what percentage of appeals to the board on refusals by local authorities in regard to one-off rural houses were successful, taking into account the Minister's guidelines?
Mr. O’Connor
The answer to the question is given in Appendix 6 of the report.
Will Mr. O'Connor put the answer on the record?
Mr. O’Connor
I will do so presently. To respond to the first question on the county development plans and the Minister's guidelines, by law, we must have regard to both.
What does Mr. O'Connor mean by "both"?
Mr. O’Connor
We must have regard to both the development plan and the guidelines.
Very well.
Mr. O’Connor
Hence, the board must make a balanced judgment with regard to both. However, the board has serious regard to the guidelines. On occasion, it has plumped for the guidelines over the development plan. In general however, there should not be a conflict, because by law, the development plan should reflect the guidelines. The guidelines constitute national policy and should be incorporated into development plans. I acknowledge there will always be a time in which they are not aligned.
That is not the case, as development plans are only produced every five years. The Minister's guidelines were issued in March 2004. Hence, if a development plan had been adopted for 2003, four years would elapse before the guidelines took effect. In theory, quite a gap can exist.
Mr. O’Connor
Yes. However, I wish to make it clear that any local authority may vary its development plan. If it wishes to vary the plan to take the guidelines into account, that can be done.
They do not do so.
Mr. O’Connor
I understand that some have done so.
Very few of them. What percentage——
Mr. O’Connor
As for percentages in respect of people who appeal against refusal, approximately half of the appeals to the board come from first parties against refusals while the other half come from third parties who object to the grants.
I am interested in first party appeals.
Mr. O’Connor
In the case of first party appeals, 17% are granted permission.
A total of 17%.
Mr. O’Connor
A total of 17% are successful, when appealing against a refusal——
In that period?
Mr. O’Connor
Yes. In the period from March to the end of the year.
Since the Minister's guidelines were issued. I am sure that An Bord Pleanála is aware that at the time, most planning authorities scoffed at the Minister's guidelines, on the basis that they were obliged to deal with applications according to their county development plan. Obviously however, in 17% of cases, An Bord Pleanála was able to change the local authority decision because of the Minister's guidelines.
Mr. O’Connor
Yes, that is correct.
What happened to the other 83% of cases?
Mr. O’Connor
They were refused. In other words, the decision of the planning authority was confirmed.
Were the other 83% refused because there was no difference between the county development plan and the Minister's guidelines?
Mr. O’Connor
No. I can give the Deputy a general outline of the reasons for refusal that emerged from the survey. The most important reason for refusals concerns the question of settlement. As I noted earlier, this means we do not accept the bona fides of the case made for a locally-generated rural housing need. The second main reason is nearly as common as the first and concerns drainage issues. The third principal reason concerns road safety issues and traffic hazards. They constitute the three principal reasons for refusals.
If the county development plan states that preference will be given to second family dwellings on farms, must the board take that into account when considering an appeal, or is it entitled to ignore it?
Mr. O’Connor
In such cases, the board would consider whether a case has been made for a locally-based rural generated housing need. That is defined in the guidelines.
Would the board take that into account?
Mr. O’Connor
Yes.
Very well.
Mr. O’Connor
While each individual case is different, I am trying to provide general guidance as to the board's attitude in this respect. As the Deputy can appreciate, it is quite difficult to interpret the development plan and guidelines together before coming to a valid decision. We had concerns that the number of appeals pertaining to one-off housing would increase when the guidelines were issued. However, the number coming before An Bord Pleanála has remained fairly static. However, the Deputy should bear in mind that only a small proportion of the decisions made by local authorities on one-off houses ever come before the board.
How many cases were handled during the period between March and December?
Mr. O’Connor
A total of 429 cases in which we considered the guidelines to have relevance were decided upon.
Does that mean that 70 of those cases were successful?
Mr. O’Connor
No. One must break down those figures. Half concerned first party appeals, while the other half concerned third party appeals. Interestingly, half of our appeals come from third parties. The single most common reason for such appeals is fear of well water pollution on the part of neighbours in respect of drainage.
I will not pursue this further.
To clarify, it is extremely important that Deputy Eamon Ryan or anyone else who seeks to elicit information should receive as much information as possible. If I may give some advice to the board, Mr. O'Connor mentioned that he did not want public confidence in the board to be diminished. The board should not expect to see a report from the so-called and self-styled Centre for Public Inquiry that will support a decision of a statutory body. I advise the board not to give them credibility by commenting on such reports even if its members are annoyed that information was presented inaccurately. An inquiry into the establishment of the Centre for Public Inquiry should be held.
The Deputy should make points that are relevant.
I have some questions and I will be brief. Do the witnesses agree that those decisions of the board which suit people are welcomed, while those that do not elicit references to ivory towers and so on? Do they find such sentiments to be frustrating? Do they believe it might be of assistance if the board's decisions were more transparent, or if its representatives came before this committee? While I do not suggest they should be interrogated, a more transparent mechanism as to how decisions are reached, particularly regarding conflicts between inspectors and the board might assist it.
Does An Bord Pleanála meet the Minister for the Environment, Heritage and Local Government? If so, how often? Does he issue policy directions to the board? What influence has he on it?
I see the issue of rural housing as a conflict between the ethos of the Irish Planning Institute and the desires of the people. I believe there is a balance somewhere in between. I have some specific questions in respect of the rural guidelines document which the witnesses may be able to answer. If not, I would appreciate it if they respond later. The guidelines state that an urban area is one with a population of 1,500 people or greater. Hence, my interpretation is that a rural area is a place with a population of 1,500 people or fewer. Despite reports to the contrary in the media, securing planning permission in a rural area is not a major issue. In the main, people in rural areas secure planning permissions. Conflicts might arise where applicants want to build on the tops of hills while planners prefer to bury buildings in holes. However, the major conflicts takes place around smaller towns and villages, where people want to move out to the countryside because they find it difficult to find or purchase a site in the town. If someone living in a town with a population fewer than 1,500 people, lodges a planning application for a site one mile outside the town, does he or she qualify for planning permission? This is where the conflict lies. My understanding of the guidelines on one-off housing is that such people should be treated as rural applicants. What is the position in this respect?
Mr. O'Connor spoke about inspecting sites for sale in County Louth. I understand that the guidelines recommended a period of seven years under section 47 of the new Act. While some counties did not have such a policy, others, including County Wicklow, had a ten year policy. I saw a recent decision by the board where it stipulated that the section 47 agreements should remain on the development after it was completed and registered with the land registry for five years. Do the witnesses have a view as to what might be an acceptable period of time in this respect? Occasionally, one encounters difficulties where people who have built houses for genuine reasons must move on. By the same token, I am well aware that this could be abused widely without such a restriction.
My next point concerns tax relief for urban renewal. Projects must be completed by the end of June or July of 2006. This may be extended in the budget. However, I am aware that there are probably quite a number of such applications before An Bord Pleanála. Are the witnesses aware of the urgent requirement to give decisions on these applications so that building may be completed? Does the board ever encounter potential conflicts of interest involving board members, such as a proposed development close to a board member's dwelling? How are they addressed?
Will Mr. O'Connor comment on the issue of the professional objector or body which might object to an application? Does he have concerns where people lodge appeals with An Bord Pleanála and withdraw them for no apparent reason? How can this situation be addressed? I read a newspaper article in which a person apparently received a payment for withdrawing an appeal against an application. Is Mr. O'Connor concerned about this trend?
Mr. O'Connor mentioned urban generated rural planning, which was part of the national spatial strategy. What does this term mean? From my reading of the relevant documents, I understand it to mean giving a person who is unhappy living in an urban area the right to move to a rural area but I do not think this interpretation would be favoured by planners.
What is Mr. O'Connor's opinion on the concept of views and prospects which planners use to block developments? The committee sought to address this concept but it has assumed a niche in the rural planning guidelines. Any time planners wish to block a development, they argue that it interferes with views and prospects but I have been unable to get an exact definition of this concept.
I have a linked question about tax incentives, a point raised by Deputy Timmins and Mr. O'Connor in the context of the launch of the report. The report states that much current development is well below par and that there is scant regard for the country's architectural heritage in planning applications for apartment developments. It has been suggested that An Bord Pleanála has done some service by refusing permission for badly designed schemes or suggesting improvements to them. This latter comment came from an editorial in the Irish Independent on 22 October 2005. Will Mr. O’Connor expand on this, especially the number of planning applications for poorly designed apartment developments? Management companies were discussed in Private Members’ business in the Dáil last night and the question of poor design of apartment developments was included in the debate.
I welcome Mr. O'Connor's comments at the launch of the report. In his speech he mentioned that many of these planning applications have been rushed to avail of tax incentives, which appears to be a problem. I wish Mr. O'Connor well in his endeavours to ensure we have good quality developments arising out of recent planning applications.
Mr. O’Connor
I will answer the Chairman's questions first and then deal with Deputy Timmins's questions. It is important to distinguish between urban renewal projects and the larger apartment developments when we are talking about standards. There is a major increase in the number of proposals coming forward due to the cutting off of tax incentives. In general, these proposals do not concern large urban areas and tend to be in rural areas because of special tax designations that are available. Some of the proposals coming forward with regard to towns are very unsympathetic to the historical or architectural context in which they find themselves. We have encountered proposals to demolish portions of main streets of towns, which the board believes are unnecessary. It would be a pity if tax incentives were the driving force in these proposals.
An Bord Pleanála will apply the same standards in terms of proper planning and sustainable development to these projects, whether they are tax incentivised or not. There is nothing in the legislation that states that An Bord Pleanála or any planning authority should apply a lesser standard to tax incentivised proposals.
There have been references in newspapers recently to decisions made by An Bord Pleanála regarding very large-scale, high-density schemes comprising 400 or 500 units of apartments in peripheral areas outside city or town centres. These schemes consist of possibly 150 units to one hectare. Sometimes these developments pay inadequate attention to the impact they have on neighbourhoods and local people who may live in adjacent low-rise developments.
Developments also pay inadequate attention to the living environment they create for future occupants. A scheme of 500 units can be almost as large as some of the small rural towns Deputy Timmins referred to earlier so it is important that such schemes are properly designed and have community facilities. They usually provide crèches because it is mandated in the planning guidelines but sometimes do not pay sufficient attention to the need for other facilities that young communities might need. I have conveyed the message that developers, regardless of what they pay for sites, must design schemes that are sustainable in their context.
I apologise for cutting across Deputy Timmins. Is it An Bord Pleanála's responsibility to recommend changes to the 1999 guidelines on residential density or the building regulations arising out of the Building Control Act 1990?
Mr. O’Connor
The guidelines are very balanced and stipulate that it is possible to have high-density schemes that are more sustainable in inner cities but that they must be balanced by increasing quality. If a developer is going to design for higher density, he or she must put in additional resources to design for quality. Sometimes, developers only heed one side of the guidelines and ignore the balancing side.
Is An Bord Pleanála determined to implement the guidelines?
Mr. O’Connor
It is determined to implement them. Deputy Timmins spoke about the transparency of An Bord Pleanála's decisions. It attempts to be as open and transparent as possible because openness and transparency are two of its basic principles. All its files are open for inspection, including the inspector's report and files relating to the board's decision. If the board agrees with the inspector, he or she must set out his or her reasons for reaching his or her conclusions and if the board disagrees with him or her, it must set out its reasons for doing so. Complaints have been made that the reasons the board disagrees with inspectors are not made sufficiently clear. An Bord Pleanála must deal with 6,000 appeals a year so there is a limit to the amount it can write in each case. We must do our best to try to explain our decisions and I will inform board members about the comments made today.
Deputy Timmins asked whether the board often meets the Minister for the Environment and Local Government and the answer is "No". The deputy chairman and I usually meet a new Minister when he takes up office. I have not met the Minister formally since he took up office.
The Minister has a role under the planning Acts in setting out policy planning but has no role in individual planning applications or appeals and is prohibited by law from exercising any power as a Minister in planning applications and appeals. However, he has the right to issue policy directives, such as the rural housing or residential density guidelines. He has the power to set basic policy to which the board and planning authorities must have regard.
On the rural planning guidelines, Deputy Timmins asked what is and is not considered rural and whether applications from people from mid-sized towns of 1,500 people who wish to move to rural areas are regarded as urban or rural generated. The board's approach to date has been that these applications would be regarded as urban generated. People who move out of mid-sized towns for no particular reason or who have no particular connection outside these towns and who wish to build houses in areas outside these towns should not be encouraged as it is an example of bad planning.
Regarding occupancy conditions, the guidelines now recommend a standard condition where permission has been granted based on a specific local need. This has a seven year timeframe, which local authorities should use. Some local authorities have many variations but it would be helpful if the authorities were to adopt the standard conditions as stated in the guidelines, which they should.
What if the local authority makes it longer than seven years, for example, ten years?
Mr. O’Connor
One would run into legal problems. For example, what would happen to a property in the long term and for what reason would the authority want to extend the timeframe? We agree on seven years, which was the timeframe generally operated by the board and then incorporated in the guidelines by the Minister. What was the next issue?
The question of the professional objector withdrawing.
Mr. O’Connor
Appeals are withdrawn in approximately 10% of cases, which is a significant number. We do not know why they are withdrawn. All objectors are required to do is send in a one line letter stating: "We withdraw our appeal." This sometimes arises from negotiations between developers and appellants, to which we would not be party. By law, a person has the right to withdraw an appeal and we have no right to question it.
In the legislation, there is a provision whereby the board can refuse to entertain the appeal if it believes the appeal is lodged for the purpose of securing a payment. Our experience is that this is very difficult to prove. For someone who wishes to make such an appeal, it probably would not take much ingenuity to dress it up in proper terms. My concern is that the board sometimes invests significant resources in processing these cases. While people pay fees, they are quite small in terms of the cost of processing an appeal. It is not good to have an appeal go to board level with an inspections report and possibly an oral hearing, which is rare, only to find it has been withdrawn.
The question of how we would interpret views on prospects was asked. This refers to what is designated in a development plan as a scenic area or so forth, which generally would be our baseline for deciding whether something was objectionable on the basis of visual amenity.
What is the legal status of a planning permission with conditions placed on it, such as a farmer sterilising land for which he has planning permission but who must produce a letter stating he will not make future planning applications?
Mr. O’Connor
That is a matter for the planning authority. A sterilisation agreement is an agreement between the landowner and the planning authority. If circumstances were to change at any stage in the future, the planning authority would be free to change that agreement provided the two parties agreed. Any agreement can be so changed.
How legal is it when a planning authority inserts the condition of the establishment of management committees to take care of private housing developments?
Mr. O’Connor
We must distinguish between ordinary private housing developments and large apartment schemes. The board does not hold with conditions about management schemes for the ordinary developments.
I have not read the report of the Centre for Public Inquiry but we all have great respect for Mr. Justice Feargus Flood. I would not suggest otherwise. On regional waste management plans, the policy was that the boundaries within the region would be sacrosanct. Decisions were made by An Bord Pleanála, in which it was very rigid, on appeal about waste management. It complemented the regional waste management plans.
The Minister issued a subsequent policy direction for change. The private sector made strong representations to the Minister about the need for those changes. In one case a company said banks would not give it money to build an incinerator if the regional boundaries were not changed. I was not aware of the board's meeting with the Corrib group but did the board receive any representations outside of the planning process to meet with the waste management industry in respect of its processes?
Mr. O’Connor
No but I am speaking from memory. We never met with the waste management people as such but we received them as part of a delegation from IBEC.
Yes.
Mr. O’Connor
That was quite a while ago. The point raised by the Deputy would have been made and our reply would have been that we have regard to the Minister's policy and, if the group wished to speak with him, it was okay. Generally, the board has followed ministerial policy in that area both in its initial and revised manifestations, as the Deputy mentioned.
When the board met IBEC, representatives of the waste industry were properly part of the group.
Mr. O’Connor
Yes. To the best of my recollection, more than one representative of the waste industry attended.
Was this issue discussed? Are the minutes of the meeting available?
Mr. O’Connor
The minutes are available.
I would appreciate seeing them.
Mr. O’Connor
I cannot recall when the meeting took place. It was approximately two years ago.
At the same time the Minister announced his policy change, which he had every right to do, the EPA made a statement in support of the regional waste boundaries being porous, for want of a better word. Has the board met with or received representations from the EPA regarding these policy issues?
Mr. O’Connor
No.
I thank Mr. O'Connor and his colleagues for attending this morning. An Bord Pleanála has an excellent reputation and I am sure the committee has full confidence in it. Its integrity is beyond question. I also congratulate our guests on the increased productivity of the board and organisation, to which reference was made. We look forward to ongoing discussions regarding major planning issues, an area that is obviously of great interest to all of us here and the public at large.
Mr. O’Connor
I thank the Chairman and appreciate his courtesy and remark.
We will go into private session for a few minutes.
The joint committee went into private sessionat 1.08 p.m. and adjourned at 1.10 p.m. until9.30 a.m. on Thursday, 1 December 2005.