Léim ar aghaidh chuig an bpríomhábhar

Wednesday, 28 Oct 2009

Annual Report 2008: Discussion with An Bord Pleanála.

I welcome the board of An Bord Pleanála to discuss its annual report. We are joined by Mr. John O' Connor, chairman, Mr. Brian Hunt, deputy chairman, Mr. Padraic Thornton, chief officer, and Mr. Gerard Egan, director of corporate affairs.

Before the witnesses begin their presentations I draw their attention to the fact that Members of the Oireachtas have absolute privilege but the same privilege does not apply to witnesses appearing before the committee. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses of the Oireachtas or an official by name or in such a way as to make him or her identifiable.

Mr. John O’Connor

I welcome the invitation from the committee to discuss the board's annual report and performance for 2008. I will advise the committee of the up-to-date position and respond to two issues which it has raised in advance.

At the outset I will deal briefly with the board's overall workload and performance. Last year's total intake of 5,800 cases, while down on the record intake for 2007, was still very high by historical standards and meant that the board continued to be under severe workload pressure in 2008. This pressure was compounded by the commencement in 2007 of the Planning and Development (Strategic Infrastructure) Act 2006, appeals relating to quarry registrations and the increased size and complexity of projects coming before the board. The number of cases of all types on hand peaked at over 3,000 in March 2008. However, with the continued drop in the intake of cases — over 30% to date this year — and special measures taken to maximise output, the number of cases of all types on hand has at this point been more than halved to under 1,500. Last month 36% of cases were determined within the 18-week statutory objective and the average time taken across all cases decided was 20.6 weeks. The board has expressed regret for the delays that have occurred and believes that we are approaching the point where routine delays can be eliminated. The projected intake of all cases in 2009 is 4,000 and the estimate for 2010 is 3,600. As indicated in the annual report the board operates a system of priority for appeals involving important infrastructure, employment, etc.

At my last attendance at the committee in 2007 I referred to the significant new functions which had been assigned to An Bord Pleanála under the Planning and Development (Strategic Infrastructure) Act 2006. After more than two years in operation I thought it might be appropriate to give the committee a brief account of this area. From the introduction of the Act in 2007, to end September 2009, the board received 137 requests from project sponsors for pre-application consultation. Some 211 meetings have been held. In 97 of these cases the consultations have concluded. In 33 instances, the board determined that they were to be regarded as strategic infrastructure cases, 46 were not regarded as strategic infrastructure cases and 18 were withdrawn or otherwise concluded.

The board has received 15 "Seventh Schedule" applications for permission. These are applications that would previously have come through the planning system and probably would have ended up with the board, on appeal, anyway. Of these, eight have been concluded with four granted, three refused and one withdrawn. Two railway applications have been concluded and approved. Six gas applications, with related compulsory purchase requests, have been concluded, with four granted and two withdrawn. Two electricity applications have been concluded and approved. The board met the 18-week statutory objective in 11 out of the 15 formally decided cases — three cases were withdrawn. In a number of cases the board has used the powers given to it in the Act to require that projects be significantly amended before they can be approved.

The applications under the "Seventh Schedule" currently with the board include one railway order, metro north, two electricity and two gas applications. Despite our best efforts the 18-week period has proved to be impossible to attain in some of the larger projects where we have often had to seek further information from the applicants.

When the strategic infrastructure Act was introduced, I promised that each project would be subject to a robust and thorough assessment by An Bord Pleanála as regards its environmental and planning implications. I believe that any fair-minded assessment of our performance to date would bear this out. It continues to be our general policy to hold oral hearings to facilitate the greatest possible public participation.

We would all agree, I am sure, that European directives have been a major force for good in protecting the environment. An Bord Pleanála in its decisions must give effect to the provisions of various EU directives. Of particular importance in this regard are the EIA, habitats, birds and various water directives. There have been several European Court of Justice decisions in recent years which have given a stringent interpretation of these directives and have been critical of Ireland and other member states' implementation of them. The board is obliged to carry out its assessments in accordance with the requirements of these directives and to afford the public full opportunity to participate in the decision making process as required by the directives.

As a result, the assessment of major projects affecting designated habitats in particular has become more complex and resource intensive for the board, making demands in terms of staff upskilling and training at a time of severe budgetary constraints. It is our experience that developers, their consultants and even local authorities are still not sufficiently cognisant of the demanding nature of the process and the need for detailed information in support of development proposals. The interface between the board and the EPA in the case of projects requiring an IPPC or waste licence as well as planning permission has been an area of particular difficulty giving rise to frequent legal challenges. The board and the EPA have set up a joint working group to review this issue and make recommendations for improvement so as to ensure that this interface is operated in an integrated, efficient and effective manner.

The board's income and expenditure will significantly decline over this year and next. Actual expenditure, excluding deferred pension funding, in 2009 is now estimated to be €20.6 million, down from €23.2 million in 2008, which equates to an 11% reduction, and this is likely to reduce by a further 10% in 2010. The decrease in the intake of cases in 2008-09 has resulted in significant decreases in fee cost recovery income for the board from €6.2 million in 2008 to a projected €5 million in 2009 and €3.5 million in 2010. The central Exchequer grant to the board decreased from €15.1 million in 2008 to €13.6 million in 2009. Accordingly, the board is facing a very challenging financial environment in 2009-10 and costs are being pared to the bone in every part of the organisation.

Having regard to these financial constraints and the reduction in the intake of cases, the board has effectively now discontinued the use of fee per case planning consultants to report on planning appeals. In recent years the board had used this flexible external resource to react to significant increases in the intake of appeals; they had been producing more than 40% reports in recent years. An Bord Pleanála will now rely on its in-house inspectorate to report on the great majority of cases. However, we will continue to use the services of a limited number of experienced local authority planners, who have spare capacity, to report on some cases, thus continuing an initiative commenced in May of this year. The board has also been subject to the central embargo on recruitment and the requirement not to renew any temporary contracts of employment. While the authorised staff complement is 172, some 166 posts were filled at the end of 2008 and this figure will be likely to further reduce, to 159, by the end of 2009.

An Bord Pleanála is conscious of the need to ensure it retains a clear focus on deploying its staff resources in a manner which gives it the capability to achieve clear and measurable performance outcomes in accordance with its statutory remit and in line with the Government's agenda for transformation of the public sector.

Each year at the publication of our annual report I draw attention to aspects of planning that are of concern to the board arising out of its functions. On the same occasion I make myself available to answer questions from the media. Copies of my statement this year have been supplied to the committee.

I now wish to deal with the two issues arising from the 2008 accounts which the committee has requested, namely, internal financial controls and legal costs recovery.

My statement in the annual report on the system of internal financial controls indicates that An Bord Pleanála did not formally review the effectiveness of that system. The Comptroller and Auditor General noted the above and commented that the board did not accordingly fully comply with the requirements of the code of practice for the governance of State bodies.

To put this in context, I should say that its finances are relatively straightforward and the board is not exposed to major business risks. For many years we have engaged an outside experienced professional accountant to check our accounts and advise as necessary. In 2005 and 2006 we engaged an international accountancy firm to conduct internal auditing pending the setting up of our own internal audit department. A comprehensive set of control procedures were put in place, reporting monthly to the management committee of which the chairman and deputy chairman are members. Copies of the minutes of the management committee meetings, including the financial reports were circulated to all the board members. Furthermore, financial performance was overseen by the audit committee which consisted of three board members other than the chairman and deputy chairman. An Bord Pleanála endorsed all of these arrangements but it is acknowledged that this falls short of the formal review by the full board as required by the guidelines. However, it is also clear that the external audit by the Comptroller and Auditor General confirmed that the financial statements of the board and the general accounting practices underpinning them are in order and that no areas of concern were identified in respect of same.

Arrangements are in place to ensure full compliance with the code of practice in 2009 including the necessary review by the board of the effectiveness of the system of internal financial controls.

I can also advise the committee that 2008 saw the completion of a restructuring of the staff organisation of An Bord Pleanála which included the appointment of a full-time dedicated internal audit officer from the existing staff complement. Furthermore, in 2009 the board appointed an external chairman of its internal audit committee. These measures will reinforce its system of financial controls and bring the board fully into line with corporate governance requirements.

It might be noted that the board differs from the generality of State bodies in that all its members are full-time and there are no non-executive directors. It is a source of satisfaction to me and a compliment to the staff concerned that no auditor — internal or external — has ever had reason to criticise any financial transaction on expenditure of An Bord Pleanála. .

Moving on to the recovery of legal costs, the outstanding amount for recoverable legal costs at the end of the financial year 2008 was €3,319,416. However, it should be noted that this figure represents the accumulated outstanding total of costs owed to the board and not written off going back to 1999, and involves approximately 40 cases. Recoverable costs arising in 2008 amounted to €1.1 million, while €952,018 was actually recovered in that year and the board has recovered €700,000 so far in 2009.

The board's policy has always been to pursue vigorously recovery of costs where the courts have awarded the same on foot of the board successfully defending itself against legal challenges to its decisions. In this regard, the board regularly uses the full range of legal options available in pursuit of money owed, up to and including the registration of judgment mortgages against land or property in the ownership of debtors, or enforcement of costs orders through requests to the sheriff to call to the houses of debtors and seek to seize goods to off-set against the debt. However, it is a fact that such attempts at recovery involve lengthy additional legal procedures which in themselves generate expenditure of further public money.

In some cases, the board will consider whether to accept a reasonable offer from a debtor in respect of payment of the substantial bulk of costs owed. This can be cost effective in terms of obviating the necessity for additional legal steps to attempt recovery with consequential further expenditure. Any outstanding balance would be written-off. However, it is often the case that persons involved in making legal challenges do not have sufficient funds or assets to discharge all or any of the costs owed. While such persons obviously have a right to institute legal proceedings, they do not have to show that they have assets or can give security for costs before instituting the proceedings. Accordingly, it can come to a point in certain cases where a decision has to be made not to expend further public money chasing a lost cause. In such cases, and only after exhaustion of a range of options to effect recovery and consideration of legal advice, the board would make a formal decision to write-off a portion or all of the costs as a bad debt.

The board is in constant liaison with its legal agent in respect of monitoring and reviewing progress on cost recovery in individual cases, and the agent is under firm instructions to pursue every possible avenue of recovery. In this context, I hope that the committee will appreciate that I am reluctant to discuss details relating to specific cases as our advice is that this may be prejudicial to future recovery of owed moneys.

Finally, on the question of legal costs, I draw the committee's attention to the recent judgment of the European Court of Justice, which found that Ireland was not in compliance with European directives, on the grounds that the State had not validly implemented the requirement that there should be a right to review of planning decisions in EIA cases which is not prohibitively expensive.

Thank you. Is the board giving a commitment that by the end of the year it will have complied with the code of practice on internal financial controls, and that it will not appear in the audit report next year?

Mr. John O’Connor

Absolutely. We have been reviewing our system for the past two years, and we can guarantee that there will be no repeat of this next year. The board is slightly different from other State bodies, as other bodies have a board of non-executive directors. The board members are all in the loop on the financial controls. There was an absence of doing the thing formally, but that will certainly be put in place because we have our own audit system up and running.

I fear that we may be going a little too far. Some of the controls now being imposed on bodies like An Bord Pleanála, which have fairly simple financial operations, might be over the top and might not be cost effective in some respects.

Your heart is not in it.

Mr. John O’Connor

No, my heart is in it. I am a stickler for financial control and the board's financial records bear full testament to that. However, I make the general point that there may be cases where the full elaborate procedure is not necessary in the case of all bodies. This is something we could debate some other time.

Who is the chairperson of the board's internal audit committee?

Mr. John O’Connor

Mr. James Hehir. He was formally the managing director of the Housing Finance Agency, and he has some experience in this area.

I raised all this because that note was in the board's 2008 accounts but also in the 2007 accounts, so it was there for two years running.

Mr. John O’Connor

When setting up our own internal audit and the systems involved, we ran over into this year from last year.

I am still concerned about the recovery of legal costs, which I raised in advance. You stated that in some cases, the board "will" consider things and that any outstanding balance "would" be written off. However, I note from the accounts in 2007 and 2008 that the board did not write off anything. The statement mentions that the board will and would do things, but it did not do anything.

Mr. John O’Connor

We are slow to write off costs. We are seen as a body that takes a hard line. We have been subject to representations from various quarters to ease off on occasion. We registered judgment mortgages and we sent out the sheriff. However, there are legal means of delaying payment and frustrating recovery of money if somebody has the mind to do so. We are slow to write off costs, but I acknowledge that there comes a point when we have to write off some of them. We are slow to give any impression that we are a soft touch in any shape or form.

There was €3,319,406 outstanding at the end of the year. Looking at the accounts, it is clear that some of that money goes back to 2005 and even earlier.

Mr. John O’Connor

Some of it goes way back.

Can you give us a breakdown of the years in which that balance is made up? If you do not have it today, you can send it to us. If money is owed for seven or eight years, the chances of getting it——

Mr. John O’Connor

I fully appreciate your concern about taxpayers' money and that we have to account for it. We have no problem in providing that breakdown, but we were advised not to get involved in discussing individual cases.

The only reason I referred to the names of individual cases in my correspondence is that these deal with awards in a public court.

Mr. John O’Connor

I appreciate that.

I do not accept for a minute that there is any confidentiality in respect of these names or the amounts awarded. These costs were awarded by a judge in a public court. If we had the time, we could go back and check the court records. What information can you give us?

Mr. John O’Connor

I do not have a problem in principle with it, but tactically it might not be the best as it might teach people tricks on how to avoid paying. I have no problem in providing details on the breakdown, without going into the individuals.

We certainly do not want to prejudice the board's chances of recovering money. You stated that €700,000 was collected, but how much in recoverable costs has arisen during the year?

Mr. John O’Connor

I do not have that figure. There is a long delay between decisions in cases and costs being taxed, legal accounts being put in place and final costs. It is quite a slow process.

Out of the €3.3 million, how much does the board realistically expect to collect? The board's audit report will be coming up again in six weeks and the Comptroller and Auditor General will probably look at that figure more closely this time than last time.

Mr. John O’Connor

I have absolutely no problem with that. I have no estimate off the top of my head of the amount we hope to collect. Asking me to say how much is recoverable might be prejudicial.

You do not want to show your hand too much. We do not want to do that either. There has been much talk in this House about compliance with Government policy and governance issues with State organisations, so when we saw these things in the board's annual report for two years running, we were concerned. I understand that An Bord Pleanála is not the only State body with this problem. The Committee of Public Accounts will have a report on that in the future. There is no suggestion that money went astray. We never suggested anything was wrong, but there is a potential weakness there.

Mr. John O’Connor

I accept that entirely. However, when cases are taken against the board, they are sometimes taken by persons of straw who are set up. I am sure you are aware of this background.

Most of us have attended public meetings and we look for a man of straw in the room to be put up.

I welcome the delegates. Mr. O'Connor cautioned in his statement against the relaxation of planning standards in a recession. The current crisis certainly offers an opportunity for organisations such as An Bord Pleanála to undertake an audit of practice. Mr. O'Connor has observed that realistic development planning will require some dezoning of existing zoned land. He also indicated a focus on the availability of services and infrastructure and other parameters of good planning such as densities, heights, impacts on amenities and so on. There is undoubtedly a need for a period of normalisation. Has there been a significant reduction in the number of applications to the board which might allow it scope to develop a more measured approach? Mr. O'Connor acknowledged that there were substantial delays in obtaining a determination from the board. When does he expect to achieve the 18-week target and can he envisage a situation where an even shorter period will be the norm?

Mr. O'Connor has observed that An Bord Pleanála has been subject to the general embargo on recruitment within the public sector. I was under the impression, based on a comment made by the Minister for the Environment, Heritage and Local Government, Deputy Gormley, that staff were being transferred from various local authorities to the board, which would make up any shortfall arising from the embargo. Will Mr. O'Connor clarify the position in this regard? As far as the Minister is concerned, these staff are earmarked for An Bord Pleanála but according to Mr. O'Connor's report, they have not yet arrived.

They must be stuck in traffic.

They should have arrived by now.

It is always a source of bemusement to me when I read the figures for the various counties as presented to us on an annual basis by An Bord Pleanála. Following a recommendation by this committee last year, the board has begun breaking down the applications before it into categories, including education, industry, residential and so on. I note the indication on page 36 of the report that 65% of applications coming before the board, 3,291 out of 5,056, relate to residential developments. It would have been helpful if these figures had been broken down on a county-by-county basis in order that we would have had some indication of what the various local authorities were dealing with.

Submitting an appeal to An Bord Pleanála can seem something like a roll of the dice, depending on where one lives. For example, for a person living in County Clare, there is an almost 52% chance that the local authority's decision will be upheld by the board. For an appellant in County Waterford, there is a 52% chance that An Bord Pleanála will overturn the decision in his or her case. I understand that on average some 32% of local authority decisions nationally are upheld on appeal. This suggests a substantial inconsistency between local authorities in their interpretation of the process. Is there communication between the board and local authorities on their interpretation of the board's guidelines? Will Mr. O'Connor comment on the apparent discrepancy in the figures for the various local authorities?

As I said, it would be helpful if the board could include in its figures next year a breakdown of applications on a county basis for each of the identified categories. It would be useful, for instance, to have a figure for the number of education appeals lodged in County Carlow. I reiterate the importance of the board achieving its turnaround target of 18 weeks. In the current economic climate it is critical for any business to obtain a decision as quickly as possible on a development appeal.

There are three main issues of concern to me in the report. First, under the existing legislation, there are two ways that a prospective rail project can go before An Bord Pleanála, that is, via the provisions of the Planning and Development (Strategic Infrastructure) Act 2006 or through the making of a railway order. Will Mr. O'Connor comment, without prejudice to any case, on the efficacy of either approach? We are all aware of the need to ensure public transport projects are proceeded with in a timely manner; therefore, it would be useful to have the board's view on existing procedures. Second, although Mr. O'Connor referred in his statement to the recovery of legal costs, he did not deal with the level of legal costs awarded against the board or the cost of a second oral hearing where decisions are overturned. Does he have figures in this regard?

Third, Mr. O'Connor commented on the interface between An Bord Pleanála and the Environmental Protection Agency, EPA, in the case of projects requiring an integrated pollution control licence. Without going into specific details, I understand that in at least one case, the State, out of fear of being fined by the European Union, was obliged to intervene in a matter that was before the board. Is there scope for participation by the Office of the Attorney General in the new joint working group in order to ensure what happened does not recur? I would welcome any comments by Mr. O'Connor in this regard. Ever since the establishment of the EPA, there has been a tussle between the issuing of integrated pollution control licences and the bricks and mortar that will house the activity. It is a constant theme of the challenges faced by the board. I understand matters came to a head in a particular case in respect of the implementation of other legislation. It is crucial that we tease this out in detail.

I note Mr. O'Connor's concern in his annual report, if not in this statement, regarding the existence of 88 planning authorities in the State. Given the growing complexity of planning issues, there is a need for a review in this regard to ensure there is adequate competence and resources within each planning authority. We should use the regional planning structures to a far greater extent to address planning issues that have a reasonable remit.

I invite Mr. O'Connor to respond to the questions put thus far.

Mr. John O’Connor

To be clear, we are in the business of dealing with planning appeals. The national average for appeals is some 8% but there is substantial variation within that figure, with a higher propensity to appeal in some areas than in others. If there is a low propensity to appeal, one can get rather skewed figures for overturning rates and sometimes one must consider this point before reading too much into the figures. There has been this diversity in overturning rates for many years and I have drawn attention to it previously. In an area such as rural housing, for example, when one considers cases on a daily basis, it is evident that there is a wide range of interpretations of the existing national housing guidelines which were meant to introduce consistency to the system. While such guidelines pertain to one area only, it is evident that their interpretation and implementation vary widely nationwide.

As much as 65% of the board's workload relates to residential development. Does Mr. O'Connor's response indicate the need for further clarity with regard to planning regulations in that area?

Mr. John O’Connor

I am trying to tie this up with the idea of different overturning rates among local authorities. I simply gave the example of rural housing because there are specific guidelines in this respect which should bring some consistency but which do not always succeed.

The Deputy spoke about the volume of work, performance, timeliness and so forth. I repeat that the board's objective is to achieve an 18-week timespan to decide cases as quickly as possible. I entirely accept the Deputy's view that given current circumstances within the construction industry and the level of confidence therein, it is necessary for people to have a certain expectation in respect of timescales. We are doing our utmost to get there. The Deputy will note from the figures provided that An Bord Pleanála has gone a considerable distance in this regard. Our backlog of work in hand has halved since the middle of last year. We now are in a position where we certainly will be processing the majority of cases within 18 weeks by the end of the year. I can envisage that next year the board will deliver a decision in the great majority of cases within that timeframe. However, there always will be some cases in which this will not be possible. I refer to cases in which, for example, we need further information or are obliged to hold an oral hearing or when it is particularly complex or in which legal or other complications arise. Consequently, there always will be 10% to 15% of cases in which one cannot meet this target. In general, however, our aim is to process cases as quickly as possible and to provide as much certainty as possible in respect of time-related outcomes.

Does this mean An Bord Pleanála's position is that the 18-week threshold will become a maximum, rather than a minimum? At present, it is perceived to be the minimum timeframe.

Mr. John O’Connor

I know. However, in practice it is difficult to get it much below that because a process of circulation is followed in an appeal. People must be given time to respond and so on and it is difficult to get much below this timeframe. I have looked into this issue and the 18-week period has been included having regard to the constraints that apply. We cannot rush in and simply decide on a matter because we believe it requires immediate decision. We must give all the parties the opportunity to make observations and so on. The local authority must be given the opportunity to make its input on foot of an inspector's report and so on. A process must be undertaken in this regard which limits the scope for squeezing the 18-week period further. However, we hope to see 18 weeks as the norm next year.

Deputy Lynch mentioned the staff transfer from the local authorities to which I referred briefly. This arose from the idea that given the drop in the number of planning applications to local authorities, their planning offices might have some spare capacity in respect of planning professionals and so forth that the board could use. In other words, one takes the overall public sector as a single unit and makes use of it to get a return on public funds. Consequently, we have an arrangement whereby seven planners from local authorities have been assigned to perform work on files for us as and when their own workload allows. Thus far, we have allocated 44 files to them and they have produced reports in 34 cases. While this is not of huge significance with regard to our overall workload, it is a good example of public service flexibility.

I refer to the figure in An Bord Pleanála's report that states it has 166 staff. In fact, it has 166 staff and a further seven who are available to the board.

Mr. John O’Connor

The aforementioned seven people are not fully available to us as they have varying degrees of spare capacity. However, we give them as much work as they can absorb within their own jobs.

They are not full-time.

Mr. John O’Connor


I was under the impression that such staff had been assigned to An Bord Pleanála from local authorities. When the Minister, Deputy Gormley, mentioned this initiative, that was the impression I mistakenly formed. Mr. O'Connor has confirmed that the staff in question are seven in number. I was under the impression that they had been made available on a full-time basis to the board. However, Mr. O'Connor now states this is not the case. He should indicate what is their availability.

Mr. John O’Connor

While seven people are available, perhaps not all of them are available full-time.

Are they located within the An Bord Pleanála offices or did they remain in the local authority offices?

Mr. John O’Connor

No. They come in and receive training, after which they work from their own offices. They take the files and then——

What percentage of their time is taken up with working with An Bord Pleanála? Is it 20%, 30% or 40%?

Mr. John O’Connor

I know it varies considerably. I would not like to put an overall figure on it at this point. However, it is certain they are not all working full-time.

Is there a whole-time equivalent? That is a term frequently used by public servants.

There is a public service norm whereby one can ascertain whether people are employed on the basis of being temporary whole-time or temporary part-time. Do the aforementioned seven people make up two or three whole-time positions because this usually is how such matters are worked out?

Mr. John O’Connor

I know but they are not with us on a whole-time basis.

I appreciate that individually they are not with the board on a full-time basis. Collectively, however, how many whole-time positions are taken by the aforementioned seven individuals?

Mr. John O’Connor

I understand. They have produced 44 files, which is not a huge amount. The output of the seven people concerned equates to approximately one half of one year's work. It probably equates to what an inspector would produce in approximately six months.

In other words, the seven positions are the equivalent of one inspector's workload over six months.

Mr. John O’Connor

Approximately, in round figures. The people concerned have been available to us since the scheme started some months ago in May.

The Minister has made much play of this initiative at different meetings and in response to parliamentary questions and so on. To clarify, the seven positions that have been allocated from local authorities to An Bord Pleanála are the equivalent of a half year's work for an inspector.

Mr. John O’Connor


In other words, the board gets the equivalent of six month's work for one person from seven positions. That is the equivalent of 7% of the workload of seven people.

Mr. John O’Connor


There are other questions to which I must respond and I will turn to Deputy Cuffe's points. On railway orders, in general, a statutory railway undertaker goes through the railway order procedure because it also involves compulsory purchase and so on. In our experience, the railway order procedure is a good one and those which we have carried out have worked out well. We have not experienced a particular problem with this procedure and, in so far as I am aware, the railway undertakers have not had a problem with it either. On the question of legal costs, I do not have figures to hand for a breakdown of legal costs awarded against the board. However, I have no problem in supplying such figures to the joint committee.

As for the interface with the Environmental Protection Agency, as the Deputy noted, this has been an ongoing problem. The legislation has tried to create a situation where there is a clear remit for both the board and the EPA, which we have tried to maintain. The obvious benefit is the absence of an overlap because that scenario is extremely unsatisfactory from the perspective of a developer who could have conflicting conditions from two bodies relating to the same development. This issue must be monitored. On the other hand, one also must ensure there is no lacuna or gap between the two in order that the environmental impact assessment process is continuous and integrated. We have set up a committee with the EPA because of experience in these areas and arising from the court case to which the Deputy referred. We already had been talking to the agency about the issue and had certain connections with it in this regard but have established recently this working group.

As for State involvement, obviously there may be changes and this committee could call for changes in legislation. It could, for example, conceivably state one should have planning permission before one receives a licence. That is just one possible way to tidy it up. I would expect that, arising from this, a review of the legislation would be required. While I am not certain, it would not surprise me if the working group recommended changes in legislation, which would immediately bring into play the Department of the Environment, Heritage and Local Government, its legal advisers and the Attorney General's office. Let the two of us at the coal face examine the problems in practical terms. Then the legal dimensions can be considered in terms of statutory changes or whatever.

May I revert on that point? While we cannot go into the details of particular cases, the two questions are interrelated. Given the legal costs awarded against the board in at least one case, there is a need to consider carefully how the board interprets the Waste Management Act and other legislation. The State should be involved in the working group to ensure that what occurred will not recur. Given the fact that the State is exposed to a significant liability, I would have believed the State's involvement at an earlier juncture to have been more appropriate.

Mr. John O’Connor

At the moment, we are considering the practical dimension. Just in case I have come across as being otherwise, I have no hang-ups about this, but the practical elements should be examined before the legal position. The Department is aware of and keeping a close eye on this matter, as it needs to consider the same issues anyway.

Regarding the Deputy's fears, we will obviously take account of the court's judgment and have decided not to appeal it. As we deal with further cases, it will play in our minds. The Deputy can take it that we will not expose the State unnecessarily to any possible risks in this area. Until the working group is set up, we will consider the matter with a belt and braces approach instead of taking any chances.

Good. Can I confirm that the delegates will write to us with the details of costs awarded against the board?

Mr. John O’Connor

Yes. There would be no problem there.

I welcome the board's personnel and thank Mr. O'Connor for his contribution. The second paragraph of his submission refers to "appeals relating to quarry registrations", etc. He probably knows that many decisions on quarries have been outstanding within An Bord Pleanála for the past 12 or 13 months. A number of those quarries are in the midlands area but, when I wrote to the board a number of times, I received no response. I wrote to the board in respect of one quarry on 29 July, 28 August and 16 September, but I have not received a response to that application.

I understand that an EU directive is holding up the development of quarries. Is the board not au fait with it? Is this the reason the board is not taking a decision on the issue? Could our guests elaborate on this point?

Our guests stated that 65% of appeals are made in respect of rural housing. There is a strong view that an anti-rural housing brigade is operating within the board and is supported by a number of organisations, some secretly. At previous meetings with our guests, we discussed the board's composition. What balance has been given to it by the appointment of rural-based personnel from the IFA, Macra na Feirme, Muintir na Tíre and the Irish Countrywomen's Association, ICA, as set out in the guidelines when the board was first established? The Irish Rural Dwellers Association has an interest in being represented. After all, 1.8 million people live in rural Ireland and believe that their interests are not being represented on the board. This important point has been made time and again by people in rural areas.

Housing standards are of concern. Now that the Celtic tiger has started to run slowly through the countryside, we can look around at the bad planning decisions taken in many towns and villages. They have resulted in serious social problems, as not enough green areas and so on were provided. Some estates have become slums because of bad planning decisions and I pity those who must rear their families there. As a public representative, I am in contact with councillors in my constituency. Tenants are making significant calls to be transferred from estates where they believe bad planning decisions have led to serious problems. We took our eye off the ball in terms of good quality housing. Many houses are substandard in terms of damp, insulation, windows and radon barriers. These problems have not been addressed from a health and safety point of view.

I wish to refer to another issue that has arisen repeatedly, namely, reports being conducted by part-time planners based in the UK. At our meeting in 2004, we were told that half of our planners were based outside the country. Are those planners registered with Irish educational authorities? If an Irish nurse or teacher trained in the UK, he or she would need to do a course in Ireland before being accepted into mainstream employment in our hospitals, colleges, etc. Many of the planners in question have a degree from the Royal Town Planning Institute in London, but they should take a course on the Irish dimension before taking up employment in this country with An Bord Pleanála. They do not recognise the uniqueness of our rural heritage, what rural life means to people and the rural settlement patterns dating back several thousand years.

The problems to which I referred are not in the countryside. Ask any member of the Garda Síochána based in a rural area. There are never any problems with anti-social behaviour. Actually, there are minimal problems, as one can never say "never", but only a small percentage of the problems relate to anti-social behaviour. Bad planning decisions have led to problems in many towns. Now is the time to reflect on and address these issues. It is a question of greater co-operation between local authorities and An Bord Pleanála.

Only slightly more than one third of cases are dealt with in the statutory 18-week period. Can our guests set a timeframe within which routine delays will be eliminated?

I would also like to address other issues, such as customer service. When a public representative makes representations, he or she should be acknowledged by An Bord Pleanála. Standards in customer service must be improved. I have brought copies of the three letters I sent, not one of which was acknowledged.

I welcome the board and Mr. O'Connor. The report dealt with the impact of European directives. This problem arises in my constituency. In Connemara, for example, 75% of the land mass is either in national heritage areas or special areas of conservation. The planning authority seeks impact assessment reports or environmental impact statements in all cases where a site is adjacent to a proposed designated area, whether an NHA or an SAC. This practically covers all of Connemara because one is adjacent to such an area no matter where one goes. What is the attitude of the board to this? The wildlife section of the Office of Public Works can never tell me who is qualified to carry out an impact assessment or an environmental impact statement on a site. After the expense of applying for planning permission, on the second or third application the applicant is asked to supply an impact assessment report or an environmental impact statement. Sometimes the cost is prohibitive because fees for these reports can range between €2,000 and €5,000. What is the attitude of the board to the fact that the applicant may appeal the decision by the local authority without an environmental impact assessment or an environmental impact statement as regards the impact of European directives?

Does the Deputy have additional questions?

I have several other questions but I will resist asking them.

I refer to strategic infrastructure projects and the requirements of consultation. Can the witnesses explain whether we are meeting all the requirements on public consultation?

My second point, which was raised by Deputy Lynch, concerns appeal success rates. At present, two thirds of appeals are varied in terms of their conditions or overturned. There is an incentive to appeal and anyone can see this. How does the rate of success of appeals compare to international averages? The level of appeals in areas such as Fingal and the city centre is twice as high as in the rest of the country. It is clear that there is an incentive to appeal because of the two thirds success rate. What are the thoughts of the witnesses on this?

My final question concerns the number of invalid appeals. It continues to be the board's policy to hold oral hearings to facilitate the greatest possible public participation. I am concerned to hear that one out of nine appeals is thrown out. Some 11% of these are due to late appeals, 4% is due to no acknowledgement slip being included and 5% concerns an invalid fee. How much flexibility is permitted to start the appeal and then get back to the appellant to ask for an acknowledgement slip or the correct fee? I know of one case in County Meath where someone sent in a fee but wrote it in an Irish punt cheque book rather than a euro cheque book. As a result, this appeal was declared invalid despite the fact that the person had done a great deal of work to try to participate in the planning process. The appeal was dismissed on a minor technicality. What is the possibility of changing the law or the regulations to be more flexible in allowing appeals to proceed even if an acknowledgment slip is not provided? If the law does not allow this, would the witnesses welcome this as an amendment in the forthcoming planning Bill?

I welcome the members of the An Bord Pleanála and thank them for the presentation. I agree with some of the concerns outlined by Deputy Bannon. Appointments to the board are not within the remit of the board but there is concern in the rural constituencies and organisations such as the IFA, Muintir na Tíre, ICMSA and the Irish Rural Dwellers Association that there does not seem to be any representation of the rural view of An Bord Pleanála. Appointments to the board have not been made from that sector. It is acknowledged that the board is not an expert board and experts can advise the board as necessary. The board should be fully transparent and independent. Rural Ireland believes it is not represented although the opinion of the witnesses may differ. I am happy to see the board is pursuing any outstanding legal costs and that it is requiring the losers of these cases pay the board. I agree with Deputy Cuffe on the cases where the board has lost. There is a liability on the board and, by extension, on the taxpayer and the State. Where the board has lost cases, what is the exposure to the taxpayer? Perhaps the witnesses will elaborate on this or provide information on this in the future.

I am aware of a high profile case in County Kildare, about which I will try not to be too specific, where the board received recommendations from the High Court and, it seems, ignored them.

Does the chairman of An Bord Pleanála have an issue with discussing this?

Mr. John O’Connor

An Bord Pleanála does not get involved in discussing individual court cases.

The committee has been in correspondence with An Bord Pleanála about this matter.

Mr. John O’Connor


This has been determined by the courts; it is finished.

Mr. John O’Connor

It may be but it is likely to come back in another application or via an appeal.

One cannot pre-empt future applications. We can talk about nothing if we rule out future appeals.

In the interests of transparency, this is an important matter. It is not sub judice because the courts have ruled on it. It is not the subject of a court case. I want to make a general point and I am not being too specific.

We will try to clarify what we can talk about. I understand that An Bord Pleanála does not want to talk about particular planning decisions but issues of public record that take place in the courts and involve An Bord Pleanála are a different matter. This applies to any Department appearing before this committee. What is said in court is a matter of public record. We are talking about the court action rather than the planning decision of An Bord Pleanála.

Mr. John O’Connor

An Bord Pleanála is a quasi-judicial body and the case we are referring to makes the point better than I can. We must ensure that I do not say anything that is held to be prejudicial to future applications that might be made in respect of this project.

I am supportive of Senator Coffey. In Monday's edition of The Irish Times, the judge in the High Court is quoted as saying that “the logic of the board’s reasoning here is unfathomable”. If an Oireachtas committee cannot discuss what is in a national newspaper and stated by a judge in court——

It is in the public domain already.

Mr. John O’Connor

It is in the public domain through the court judgment. However, I cannot be drawn into discussing the merits of the proposal or saying anything that may be prejudicial to the future application.

I must leave the meeting but Mr. O'Connor's reply to my question will appear in the record.

I am being very careful.

We will deal with this as a specific item in a moment. We will ask Mr. O'Connor to respond to everything up to this point because members of the committee who asked questions may have to leave. We will return to this subject.

Mr. John O’Connor

Deputy Bannon asked about quarry cases. A system of registration of quarries was introduced in the Planning and Development Act of 2000. This required operators of quarries to register the operation with local authorities. Local authorities then had the power to put conditions on the quarries in certain circumstances and the operators had the right to appeal against the conditions. We received just less than 200 appeals on conditions applying to quarries around the country. Some five or six appeals have not been disposed of at this stage. Of any category of development that has come before us, these are the most troublesome and they require a lot of work.

A number of court cases which were initiated as a result have been settled in recent weeks and we have gotten clarity from the courts in regard to some of the outstanding issues. We are expecting a decision from the European Court of Justice on environmental impacts. Retention permission cannot be granted in developments requiring environmental impact assessments.

The specific case I referred to has no implication for the courts.

Mr. John O’Connor

It may not have direct implications but the rulings by the ECJ could impact indirectly on it. If, for example, the case included an element of continuing operations or retention, it would automatically be affected by the judgment. Am I making myself clear in that regard?

By way of clarification, the requirements for an environmental impact assessment vary among EU members states.

Mr. John O’Connor


A quarry may require environmental impact assessment if it was developed in Ireland whereas it may not if it was in Poland.

Mr. John O’Connor

The judgment would apply once an assessment was required.

The judgment will apply differently in each country depending on local legislation.

Mr. John O’Connor

It will have a differing effect depending on domestic legislation.

It can be addressed through domestic legislation.

I was told in July that the backlog was six months. The case I referred to has been with An Bord Pleanála for 13 months.

Mr. John O’Connor

I suspect the case in question is affected by the ECJ judgment. The few cases that remain outstanding are tied up by this judgment.

I would not think so. It is a small family operated quarry. It is not run by a business or a developer.

Mr. John O’Connor

However, we must deal with the legal point. Clarity will be brought to the issue of retention through the new planning legislation and recent High Court decisions in three cases involving quarries. I apologise if we have not responded to the Deputy's correspondence and I will pursue the matter in person immediately when I return to my office.

Two members asked about the composition of the board in the context of rural housing. The appointment of board members is governed by legislation which requires that they be selected through a panel system. Apart from the chairperson, who is appointed by the Government, members of the board are appointed by the Minister through the panel. I cannot answer for the appointment of the board, therefore, other than to note that I come from a small farm in north-west County Cork and would not like to be described as having a Dublin 4 perspective. Rural housing organisations are not formally represented on the board but its membership includes a wide range of backgrounds, qualifications and experience.

Deputy Bannon asked about fee-per-case inspectors. As members will be aware from our previous appearances before it, we created a panel of fee-per-case inspectors to deal with the bulge we experienced in our workload. We were glad to have them because they allowed us to keep the show on the road but with the decrease in our workload we have ceased to employ their services. Approximately half of these inspectors were based in the UK. In their defence, they were fully qualified planners and Ireland and the UK shares a common qualification system.

In regard to delays, our workload has become manageable and we envisage that by the end of December more than 50% of applications will be decided within 18 weeks. That figure should be even better next year but it will always be the case that a certain proportion of applications exceed this timeframe.

Is it the case that site inspections are always carried out?

Mr. John O’Connor

It is almost invariably the case. They are not conducted on the rare occasion where a case has already been inspected and the inspector decides that its circumstances have not changed.

At the end of the day, it is not fair to blame planners or inspectors for the decisions of the board. The inspector's report inputs into the deliberations but the board takes responsibility for the decisions that emanate from it.

Is Mr. O'Connor suggesting that planners are unaccountable?

Mr. John O’Connor

No, planners are accountable to the board. They work within a certain framework laid down by the board. The board receives their reports with all the other inputs into a case before making its decision. In approximately 14% of cases, the board disagrees with inspectors' recommendations.

There is a belief that they have powers over people's rights.

Does the board or the inspector have the final say?

Mr. John O’Connor

It is clear in legislation that the board has the final say. The inspector's report is one input into the board's decision.

Can the board and the inspector hold different opinions?

Mr. John O’Connor


That complicates matters.

Why is there a need for a board if the inspector's decision is final?

This has caused considerable anxiety.

Mr. John O’Connor

Deputy McCormack raised the very topical issue of the ECJ's stringent interpretation of European directives, which is why I referred specifically to it in my statement. While the directives are supposed to be transposed by Irish legislation, the decisions by the ECJ are having a direct effect on us. If Irish law is not fully in line with directives, we must look beyond it.

How are local authorities and the board interpreting adjacency to designated areas?

Mr. John O’Connor

If a development has the potential to significantly affect a special area of conservation or a special protected area——

I am trying to find out the distance of an adjacent site.

Mr. John O’Connor

It is a question of whether it has the potential for having a significant effect on a habitat or species.

Who decides whether a once-off house would have an effect on a designated area?

Mr. John O’Connor

That is a matter for the planning authority in the first instance when the application is made. If it is seen to have a potentially significant impact, it must be given an appropriate assessment. That does not mean an environmental impact statement in all cases, by the way. In small projects it would require an appropriate assessment.

My question is, if it goes to the board without an environmental impact statement, what is the board's attitude?

Mr. John O’Connor

With a small project we are not talking about an environmental impact statement. If it requires an appropriate assessment, the board must consider whether it requires such an assessment and, if so, obtain it. If it is a bigger project that requires an EIA, then the board must make an assessment——

It does not matter what the planning authority says.

Mr. John O’Connor

No, once a project is appealed, the decision of the local authority is set aside and the board, in the words of the Act, must deal with it as if the application were made to it in the first instance.

That is all right. I thank Mr. O'Connor.

Senator Hannigan has just left but he raised some questions earlier.

Mr. John O’Connor

Will I hold the reply until he comes back?

No, he will read the reply in the record.

Mr. John O’Connor

The Senator commented on the overturn rate for appeals in Ireland. He mentioned that more than 60% of cases that are appealed are overturned or significantly changed by the board, and asked for international comparisons. The only other jurisdictions in which there are similar systems are England, Scotland and Northern Ireland. In those jurisdictions there are only first-party appeals against refusals; there are no third-party appeals. The overturn rate for those jurisdictions is not significantly different from ours — in Northern Ireland, up to relatively recently, it was a good deal higher. The overturn rate we are experiencing here is seemingly not greatly out of line with the experience in other jurisdictions in as far as we can compare them.

The Senator also mentioned invalid appeals and that a significant proportion of appeals were declared invalid for acceptance by the board. He asked whether there was flexibility in this regard. There is very little flexibility — almost none. Under the planning regulations one must, when making an appeal, meet certain basic conditions, including having the correct name and address, paying the correct fee and enclosing acknowledgement of one's submission to the local authority. They are the main conditions I can think of offhand. In addition, under the regulations and under the main legislation, one must appeal within a certain amount of time. All these conditions must be complied with in order for an appeal to be valid. If they are not, we cannot accept the appeal. If we were to accept a third-party appeal which did not comply with the conditions, for example, the developer whose project was the subject of the appeal would immediately go to court and get the appeal thrown out and we would be hit for costs and so forth. Over the years we have had much experience in this area and we have built up fairly foolproof systems. The answer to the Senator's question is that there is no real flexibility.

Would it be a good idea to change the law to make it more flexible? This is understandable from the point of view of third parties, but from our point of view it could create many problems in terms of administration. It would bring uncertainty into an area in which we have developed certainty over the years. Thus, I would caution against it to ensure efficient administration of the system.

The biggest issue is the original receipt from the local authority. The public cannot understand this. When the person concerned goes to look at the relevant file on the local authority's website, his or her submission is already on the file. It can be verified that it is there, but if the person does not have the original letter of acknowledgement his or her appeal is not valid.

Mr. John O’Connor

That is what the Act says. It is very clear.

Then it is over to us to consider it.

Mr. John O’Connor

Yes. I dealt with the issue about which Senator Coffey asked, which was that of appointments to the board. Other members also raised this. On the question of legal costs, I do not have with me the costs of cases lost by the board but, as I promised Deputy Cuffe, we will supply a breakdown of these to the committee as soon as we can.

I respect the right of the board to defend its decisions within the courts if necessary, but my interest is in the transparency about decisions to progress judicial reviews or decisions by the board, and the effective use of taxpayers' money. We must learn from past experiences in which courts, including the High Court, have found against the board and recommendations have been made. Why would the board then progress to a second judicial review without taking legal advice, further exposing the taxpayer to legal costs? I am not sure who makes the decision within the board on whether to seek legal advice. I would have thought it was logical to do so in circumstances in which there is considerable exposure to the taxpayer or in which recommendations made by the court are being ignored. That has been the case, sad as it is for me to say so, and it should not happen again. Why should the board not take legal advice in such circumstances? Does the board consider the cost to the taxpayer in taking judicial reviews without taking considered legal advice? That is an important question in the interests of transparency and the use of taxpayers' money. It is a simple question and I would like to hear it answered.

I understand the chairman has indicated he has a particular difficulty with talking about individual cases.

Mr. John O’Connor

No cases have been mentioned so I will try to deal with it as best I can.

All right. There might be supplementaries. I will first ask Deputy Fitzpatrick to contribute.

I apologise for my late arrival as I was at another meeting. I am a Deputy from north Kildare, which is not the area concerned in the case mentioned, but I know there was great unease within the local community about the activities of the board. Great stress was caused to many families and much pressure was put on people with regard to this episode. The board should issue an apology for the way in which it handled the case, not now but in the future. That would not affect a future application. However, ordinary people living in this rural area were put under severe pressure and I believe some acknowledgement should be given to them. One would have to be there to realise the stress these people were under.

One of my questions was related. In the chairman's report he said, with regard to legal costs, that he would draw the committee's attention to the recent judgment of the European Court of Justice, which found that Ireland was not in compliance with EU directives on the grounds that the State had not validly implemented the requirement that there should be a right to review of planning decisions which is not prohibitively expensive. One can only seek a judicial review in the High Court and that is where the costs arise. Presumably there is a need for Ireland to change its legislation to provide a cheaper forum to adjudicate on these matters — a lower court or similar. Is Mr. O'Connor seeking to have this implemented? This would be an alternative to the current regime under which one must make an application to the High Court for review.

I wish to comment on this topic. I understand Mr. O'Connor may have a difficulty responding as the questions refer to a particular case.

Mr. John O’Connor


We have had ongoing correspondence with An Bord Pleanála on behalf of this committee about a particular case, to which I will refer in a moment. It may be safer for the witnesses to listen to what we have to say and then reply to us in writing as far as possible. I do not want to put them on the spot on a particular case today. However, we must quote what was said in the High Court.

Mr. John O’Connor

To be clear, it is in a relatively small number of cases that the board's decisions are challenged by way of judicial review. The board has a good record in defending its decisions and judicial review challenges. Senator Coffey seemed to be under the impression the board instituted a judicial review, but it did not; it was instituted by other parties. It is not correct to say the board ignored court recommendations, nor that it did not take legal advice.

I will read extracts from what the judge said in court last week. This committee's point of view is that these are matters of public concern. They are before the courts and reported in the newspapers, and it is legitimate for the committee to comment on them. I understand the delegates must give a measured report in response but the committee wishes to put this on the record.

I shall be up-front with regard to the case of Usk and District Residents Association Limited v. An Bord Pleanála and others. The judgment was that the decision of An Bord Pleanála to grant planning permission for an engineering landfill would give rise to reasonable apprehension that there had not been an impartial decision-making process, the decision-making process was irrational and in excess of the board’s jurisdiction and should be quashed. That was the judgment of Mr. Justice McMenamin on 8 July 2009. What is of concern to this committee, because we are always asked about the cost to the taxpayer of all these cases, is that in the earlier judicial review, Mr. Justice Kelly made a non-binding recommendation that when the matter was remitted before the board it would be considered only by board members who had not heard the previous appeal. In the court the judge said the chairman of the board, namely, Mr. O’Connor, wrote a memorandum on the hearing in which he said it was an established practice that the chairman and deputy chairman would be involved in the decision, adding that the exclusion of five members who took the quashed decision would seriously weaken the level of experience and expertise that would be brought to bear on the determination of the case of the board. I shall add to that. It appears that Mr. O’Connor was casting aspersion on those members of the board who were not among the original five by saying they may not have the experience and expertise to deal with a determination of the case. Mr. Justice McMenamin looked at the curriculum vitae of the five members and said there was no want of qualifications by the other members, as far as he was concerned. He stated he found the logic of the board’s reasoning in this regard as unfathomable.

We, as members of an Oireachtas committee, have a problem if we cannot raise these matters with An Bord Pleanála when its representatives come to present its annual report to the committee, especially because we have had detailed correspondence. I ask the chairman to comment in so far as he can. We shall then ask him to comment by way of letter when he has had time to consider what has been said today on the issue. We are not referring to any aspect of any planning decision but to the processing of the case. We are not interested in the planning issue nor are we attempting to interfere or second or third guess anything but are referring to how An Bord Pleanála processed a case. This is a process issue rather than a planning issue.

Mr. John O’Connor

I am very concerned that in the way that statement is read out it might sound to people reading it that the board has some axe to grind and is in some way biased.

The judge said that, not me. I was quoting what he said.

Mr. John O’Connor

I am just clarifying the point in case somebody got a wrong impression. The board had no bias. We have no conflict of interest or anything like that. The board made its decision on the basis of its best judgment and tried to deal with the case as best it could, weighing up all the circumstances of the case to make the best planning decision. We had no hang-ups about it and there was no bias on our part. We had no conflict of interest and dealt with the situation as we thought it appropriate and as I thought it appropriate.

As chairman of the board, I have that responsibility in law for the overall management of the affairs of the board. On occasion, I may decide what the composition of a board should be to deal with various issues. That is in the legislation and it is my right and prerogative. To say that because I exercised that right in a certain way it was in some way biased is something I cannot accept. I have tried in my nine years as chairman of the board to behave in a thoroughly open and fair fashion at all times and I do not believe I departed from that in this case.

As a matter of clarity, Mr. O'Connor stated that legal advice possibly was sought before the case proceeded to the High Court. In the judgment of 8 July it is stated that it was "remarkable there is no evidence that the board moved to obtain legal advice at all prior to embarking on the course of action". It is clear from that judgment there was a problem with regard to the board——

Mr. John O’Connor

The judge made a wrong assumption. It is as simple as that.

The judge was wrong.

Mr. John O’Connor

He made a wrong assumption.

That is fair enough. We were not there and cannot comment. However, Mr. O'Connor will understand that, based on what the judge said, we are expressing our concerns. We will give Mr. O'Connor the opportunity to respond, if he wishes to, in further detail. I read that statement for the record. Mr. O'Connor can send us a letter which we will read into the public record if he so wishes. It is his prerogative. He is not obliged to do this but if he feels it is necessary, he is welcome to do so. We shall close that topic. The point has been made and it is over to Mr. O'Connor. Deputies Tuffy and Upton raised other points.

Mr. John O’Connor

Deputy Tuffy referred to the very recent development, to which I drew attention, regarding the European Court of Justice judgment about having access to judicial review without being faced with prohibitive costs. That is in the European directives. That judgment found that Ireland had not implemented it adequately because people were able to show they may be faced with prohibitive costs if they wish to challenge a decision of the planning system.

The Deputy asked a very pertinent question. We must look at that issue. I believe the Attorney General is already considering it and has made certain moves in that direction. I do not know whether the answer might be to delegate the matter to lower level courts. The question is about the judicial review of major decisions which, on occasion, will involve many hundreds of millions of euro and perhaps is beyond the scale of what one would normally associate with the Circuit Court, for example. I do not have a clear view on that but there are probably major issues concerning the putting down of all those cases to the Circuit Court.

I have another question. In the annual report, Mr. O'Connor includes a heading on the need for reform of local planning structures. The last paragraph states: "The chairperson said he believes strongly that the public service reform agenda must include rationalisation of the planning service in the interests of the quality of planning and public service efficiency". One can read from the actual report that Mr. O'Connor is somewhat critical of some planning decisions taken by local authorities. He mentioned that decisions may be made that do not help in issues such as water quality. He raised the issue of planning given in areas prone to flooding. Deputy Bannon raised the need for quality design. There is now a problem with apartments built in recent years. High density may be the way forward but in many cases the design is awful. What does Mr. O'Connor mean by "rationalisation of the planning service in the interests of the quality of planning"?

Mr. John O’Connor

I was referring to the current local planning structure whereby we have 88 individual planning authorities for a country with a population of 4 million. By international standards that is a very high number of planning authorities. There are increasing demands on the planning system in terms of making rational strategic decisions about where development should be located and other issues such as water catchment, the use of the environmental constraints on planning, the complications arising from European directives and ECJ judgments and so forth. These are all making new demands on the planning system and I do not believe it is reasonable to expect that our present structure, with so many small and fractured type authorities, is the way to deal with the future. There must be rationalisation. I do not want to be too prescriptive about it. I am looking at the planning system as it operates on a national level and can see there are certain problems. It is my job and duty to point out what these are. It is a matter for others to decide what the solution should be in the context of broader public sector reform, local authority reform and all the other issues.

Specifically on that question, as Chairman of the committee, I fully agree with Mr. O'Connor. Eighty-eight planning authorities are far too many for the size of the country. Some are for small urban areas with very limited populations and their planning functions might easily be subsumed into county level. Mr. O'Connor might provide the committee with further information on appendix 2. He gave a breakdown of appeals to An Bord Pleanála by county area for 34 or so local areas. Can he break it down further? Would the delegation be able to break down the figures for the 88 planning authorities? I suspect that in the case of some of them there has not been an appeal. I picked County Offaly because I am familiar with it and it is my neighbouring county. The figure probably covers Tullamore Urban District Council, Birr Urban District Council, Edenderry Town Commission and Offaly County Council. The delegation engaged in a collation. Will it break it down the figures for the 88 planning authorities?

Mr. John O’Connor


I suspect some planning authorities have submitted no cases to An Bord Pleanála.

Mr. John O’Connor

I am sure there would be some.

If a planning authority never interfaces with An Bord Pleanála, its decisions and reports, it limits its expertise and competence. It might help to further the case the delegation is making about the 88 planning authorities if it broke down the figures.

Mr. John O’Connor

Yes, we will. I believe we have the information in our systems.

The delegation can send it on.

I thank the Chairman for giving me the opportunity to speak as I am not a member of the committee. The delegation may have already addressed my question.

I understand the legal position in terms of the responsibility of the board and that it signs off on a planning appeal. What are the criteria which influence it in overturning the recommendation of an inspector? Can the delegation give me some idea of how frequently this happens? If the advice of a planning expert such as an inspector becomes redundant, what is the purpose in giving it? As an outsider looking in at the planning process, it is a significant issue when the board overturns a recommendation made by a planner.

I have a number of other questions. Oral hearings are sometimes sought and may or may not be granted. Can the delegation give me an idea of the percentage of requests for oral hearings which are accepted or rejected? What are the criteria which influence the decision on whether an applicant is granted an oral hearing?

Where additional information is sought, it is sometimes difficult to access it. If one has an interest in a particular case, is it possible that when the additional information is submitted to the board of An Bord Pleanála for it be put on a website? It can sometimes be difficult to access the additional information which can sometimes be very significant in influencing the outcome of an appeal.

Does the delegation have a view on the recommendation made in the proposed Bill to reduce the number of board members required from three to two to sign off on a decision?

Mr. John O’Connor

Deputy Upton's first question concerned the board overturning inspectors' reports. We have had some debate on this issue. I understand the board overturns 12%, 13% or 14% of the recommendations of inspectors from grant to refusal or refusal to grant. The general criteria include proper planning and sustainable development of an area and impact on the environment. They are the same issues the inspector examines but the board makes a different call on them. Is it a question of making an expert redundant? I do not know, but in its wisdom the Oireachtas has decided that we do not have the system in place in other countries under which the inspector makes the decision. In this jurisdiction, under our planning legislation, the board — a quorum of at least three members is required — must make a decision on the case, having considered the inspector's report, the submissions received from both parties, the local authority file and any further observations local authority planners wish to make. All of these documents are placed before the board which makes a call. Sometimes it will agree with the planning authority and sometimes it will go the other way. It is difficult to be precise about the criteria — the general criteria which apply to any planning decision are brought to bear.

We have included some figures in our annual report for oral hearings. The number of oral hearings in ordinary appeals is quite low. I understand it is approximately 100 a year but I will get the exact figure for the committee. As I said, we have a general policy to have an oral hearing on major infrastructural developments such as energy, environmental and waste projects. In 2008 we held 96 hearings and received requests involving 90 cases. The committee should bear in mind that sometimes the board will direct a hearing, even where one is not requested by the parties involved. The incidence of cases where parties to an appeal request a hearing is quite low; it is a small percentage of the total. In deciding what criteria it should use the board determines if there is enough information on the file to decide the case. If there is not and the inspector or the board considers that further questioning of any of the parties involved, especially the developer, is required to flush out issues, it has cause for holding a hearing. If the issue involved is exceptionally complex and would benefit from ventilation and discussion at a hearing, it is another reason for holding one. If there is large-scale public interest in a development, a hearing might be held, although sometimes such projects are simple. Sometimes the degree of public interest, especially if the project is allied to the other issues I mentioned, is a factor.

I do not think we cannot put additional information on the website because our files are not opened until after a decision is made. When information comes in from a third party, it is circulated to all parties, if it considered relevant. If developers ask for additional information, it is circulated to all parties. We have a system in place in respect of very large cases to put additional information on the website. One of my colleagues might discuss this aspect.

Mr. Padraic Thornton

In strategic infrastructure cases where applications are made directly to the board under the 2006 Act, the applicants are asked to create a separate website, independent from any other they may have, and to put the additional information on it, in addition to the documentation provided on the application.

Am I correct in understanding that when an appeal is made to the board, the file is available on the board's website, but that where, through the board's communication with the original proposer of the development, he or she provides further information, it is not available?

Mr. John O’Connor

It would be circulated to the parties to the appeal. Deputy Upton asked about putting the information on the website in order that it would be easier to access it.

Would it be available to anybody who wished to see it?

Mr. John O’Connor

Absolutely, yes.

It is only available to those who are part of the appeal.

Mr. John O’Connor

Exactly, those who are involved in the process.

I have one question.

Mr. John O’Connor

I will qualify that. If it is significant further information——

That is what I am coming to.

Mr. John O’Connor

——public notice has to be given.

Does the delegation have to go back over the issue? I can imagine at local authority level if significant information is submitted, it would give rise to a planning application. The same must happen at board level.

Mr. John O’Connor

Yes. If the information is significant or changes the nature of the development in some way, we will look for new notices.

The term "significant" means something which would require a planning application.

Mr. John O’Connor

Not necessarily.

I ask the delegation to take us through what happens.

Mr. Padraic Thornton

In environmental impact assessment cases, if the additional information includes data which indicate there would be significant effects on the environment and so on, there is a requirement that the matter be notified to the public again. If significant data on the environmental effects——

Only the environmental effects.

Mr. Padraic Thornton

——are contained in the additional information, a new public notice will have to be issued and the public will be given the opportunity to comment on it.

But only if there is an environmental impact.

Mr. Padraic Thornton

If it includes data which indicate there would be significant effects on the environment.

What would happen if the application were to make a significant change to the physical development but did not have an effect on the environment?

Mr. Padraic Thornton

These instances arise where there is an environmental impact assessment and the data indicate significant environmental effects.

Does it apply only in cases——

Mr. Padraic Thornton

In these types of cases there would be a new public notice but not in all cases.

Does this apply only in cases where there is a significant additional environmental impact? I am trying to tease this out.

Mr. John O’Connor

The regulations are quite clear about the environmental impact assessment aspect.

That is clear cut. What happens to the other part of the application?

Mr. John O’Connor

On occasion the board will have to make a call on whether there is significant new information. The White case states that if one makes significant changes to a planning application one must give public notice of it. Sometimes one is making a judgment call. The additional information may simply be flushing out some detail about what is already there but if, for example, one is changing the site boundary one would almost invariably require a new notice.

What is that process? Who advertises? What is the objection period?

Mr. John O’Connor

There is a site notice and a newspaper notice. The board will write back to the applicant saying that it requires him to put in a new notice in the following terms and will usually tell him what to say in that notice.

Is that unusual?

Mr. John O’Connor

Yes, it is unusual.

Does that offer any comfort to Deputy Upton?

Yes but I asked the question from the point of view of the general public where, for instance in my constituency, there were many apartment developments to which the local people had serious objections for various reasons. Sometimes if additional information goes in they are not aware of it. The average resident then feels left out of the loop and goes away with the impression that he or she does not have a voice in the process.

This becomes significant in the area immediate to a large development. The developers are in a position to have pre-consultation meetings with the local authorities but the individual residents are left out. This is not necessarily the responsibility of An Bord Pleanála, it is also that of the local authority. There should be some information system whereby the local authority has a responsibility to inform the households within a certain radius of a large development that it is about to happen. I accept that this is not the responsibility of An Bord Pleanála. I am talking about a densely populated area. The situation is obviously quite different in the country.

Mr. John O’Connor

The way the system is supposed to work people are supposed to know what is going on, what is being applied for and to have the opportunity of responding if they so wish.

The Planning and Development (Amendment) Bill is coming before the Dáil.

Mr. John O’Connor

It is a question of practice and the Deputy is telling us that the planning practitioners should be more careful when dealing with changes to developments to ensure that public notice is given in all necessary cases. That is a fair point.

We can discuss this in the context of the Planning and Development (Amendment) Bill.

I think we have exhausted all the questions.

Mr. John O’Connor

Deputy Upton asked one final question. She said that the Planning and Development (Amendment) Bill provided for a change in the quorum of board members to deal with cases. I would leave it to the legislators to decide what is appropriate.

I thought Mr. O'Connor might say that.

I thank the witnesses for their attendance here today, especially so soon after the publication of the board's annual report. We have had a good healthy exchange of views from all sides and all political colours and good responses.

The committee meeting is adjourned until Tuesday, 3 November when we will meet the Simon Communities to discuss homelessness. The joint committee adjourned at 4.15 p.m. until 3.30 p.m. on Tuesday, 3 November 2009.