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JOINT COMMITTEE ON THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT díospóireacht -
Tuesday, 9 Nov 2010

Annual Report 2009: Discussion with An Bord Pleanála

The main business of today's meeting is a presentation by An Bord Pleanála in respect of its annual report for 2009. From An Bord Pleanála I welcome Mr. John O'Connell, chairperson, Mr. Brian Hunt, deputy chairperson, Mr. Pádraic Thornton, chief officer, Mr. Des Johnson, director of planning, and Mr. Gerard Egan, director of corporate affairs, who are appearing before the committee to make a presentation on the board's annual report for 2009.

I remind members of the long-standing parliamentary practice, or long-standing ruling of the chair, to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official by name or in such a way as to make him or her identifiable.

By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. If witnesses are directed by the committee to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter only to a qualified privilege in respect of their evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.

I invite the representatives of An Bord Pleanála to make the presentation.

Mr. John O’Connor

I am pleased to accept the invitation from the committee to make a presentation on the board's annual report and performance for 2009. I take this opportunity to advise the committee of the up to date position and comment on two issues which were discussed at our meeting last year.

Last year's total intake of 3,800 cases was significantly down on the intake of 5,600 for 2008. This meant that in spite of a significant reduction in expenditure, which necessitated the effective end of the use of fee per case inspectors to report on normal planning appeals, the board was in a position to reduce the backlog of cases and improve its performance relative to the 18 week statutory objective period. Although a considerable workload still existed from the Strategic Infrastructure Act the number of cases on hands was reduced from 2,636 at the start of 2009 to 1,332 at the end of the year. In 2009, 26% of cases were disposed of within the statutory objective period. The compliance rate has improved continuously this year and more than 70% of cases are being disposed of within the 18 week statutory objective period. The current number of cases on hands is just over the 1,000 mark. The projected intake of all cases in 2010 is 2,900 and we are projecting a similar intake for 2011, not including new case types under the 2010 Act. While the great majority of cases are being disposed of within 18 weeks the board is continuing its efforts within available resources to achieve its strategic target of discharging 90% within that timeframe.

In regard to normal planning appeals the 2009 report shows that the percentage of local authority decisions appealed to the board showed a slight increase to 9%; just over half of these were received from third parties; the proportion of local decisions appealed which were reversed by the board remained broadly unchanged at 34%; first party appeals against refusal resulted in grants of permission in 29% of cases; third party appeals against grants of permission resulted in refusals in 39% of cases; and 8% of the appeals lodged with the board were invalid.

From the introduction of the Strategic Infrastructure Act in 2007 to the end of October 2010, the board received 174 requests from project sponsors for pre-application consultations. Some 292 meetings have been held. In 136 of these cases the consultations have concluded with 28 cases being withdrawn. Of the remaining 108 cases, the board determined that 46 were to be regarded as strategic infrastructure cases.

The board has received 17 "Seventh Schedule" applications for permission. Of these 14 have been concluded with nine granted, four refused and one withdrawn, three railway order applications have been concluded and approved. Seven gas applications which includes related compulsory acquisition requests have been concluded with four granted and three withdrawn. Six electricity applications have been concluded with five approved and one 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. Despite our best efforts the 18 weeks period has proved to be impossible to attain in some of the larger projects, in many of which we have had to seek further information from the applicants. The figures given relate to projects submitted under the Strategic Infrastructure Act 2006 and do not include local authority projects such as roads, waste and water services. When the Strategic Infrastructure Act was introduced I advised the committee that each project would be subject to a robust and thorough assessment of its environmental and planning implications by An Bord Pleanála. 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 a thorough examination of significant projects and the greatest possible public participation in the planning of such projects.

The total actual expenditure of the board in 2009 was €20.4 million in comparison to €22.4 million in 2008. The expenditure projected for 2010 is €16.9 million, a reduction of some 25% since 2008. Significant curtailment of expenditure and tight monitoring and control of the budget continues to be an imperative for the board.

The board has adhered strictly to the Government embargo on recruitment and the requirement not to renew any temporary contracts of employment. There are now eight board members compared to 11 in 2009. The authorised complement of staff is 172 posts. The number of posts currently filled is 155. The board is conscious of the need to ensure it retains a clear focus on deploying staff resources in a manner which gives it the capability to achieve clear and measurable performance outcomes in accordance with its statutory remit and the Government agenda for transformation of the public sector. The board is fully co-operating with the Department of the Environment, Heritage and Local Government in the implementation of the Croke Park agreement relating to public service reform. All aspects of the board's operations relating to budget, staffing and so on, are constantly monitored and reported to the Department on an ongoing basis.

The latest legislation passed by the Houses related to planning is the Planning and Development (Amendment) Act 2010. The Act will have a significant impact on An Bord Pleanála in respect of the nature and extent of the board's functions when all sections of the Act are brought into effect. In the case of environmental impact assessment, EIA, type developments and projects affecting European natural heritage sites, retention permission applications may only be entertained where the board has determined that exceptional circumstances exist. The Act makes provision for a substitute consent procedure in exceptional circumstances where developments have been carried out but are not in compliance with EU directives. Substitute consents may only be granted by An Bord Pleanála and cannot be granted by planning authorities. The legislation introduces the concept of a remedial environmental impact statement, EIS, and remedial natural impact statements to accompany such applications. The board will have to rule on the adequacy of remedial measures and, in certain circumstances, it will have powers to direct the cessation of activities and the taking of specified action by the developers or plant operators.

The Act also contains additional detailed controls and regulations with regard to quarries. Following determinations and decisions of planning authorities on the legal status of quarries in the light of EU directives, the legislation provides a right of review by the board of notices served on quarry owners and operators. There are also provisions in the legislation for quarry operators submitting applications to the board for substitute consent.

The Act contains provisions for local authorities and some State authorities to apply to the board for consent for development for which appropriate assessment is required under the EU habitats directive. This provision will extend the number of local authority developments requiring board consent beyond the range of development for which approval from the board under the EU EIA directive is currently required. In addition, the Minister for the Environment, Heritage and Local Government has indicated his intention to transfer functions under the Foreshore Act from his Department to the board but this must await primary legislation.

The committee will be aware that many of these provisions are complex and arise from judgments of the European Court of Justice and representations from the European Commission with regard to the implementation of various EU directives on environmental impact assessments and nature conservation. I accept the need to improve and clarify the legislation and to ensure it is implemented effectively but it is essential that the new provisions are implemented in an efficient, sensible and balanced manner. Care should be taken by all statutory bodies involved not to over-react to the new requirements and to ensure that the procedures and practices required to implement these provisions are not excessively bureaucratic, legalistic or financially prohibitive to project sponsors. Otherwise, they could end up damaging the competitiveness of the economy or discouraging or delaying development which is sustainable and provides employment, with no gain in terms of environmental protection. For its part, An Bord Pleanála will be conscious of these risks in the discharge of its functions.

Last year, at the committee's request, I dealt in detail with the issue of internal financial controls in the light of comments made by the Comptroller and Auditor General in his report on the 2008 financial accounts. I am pleased to report that in 2009 the board complied in all respects with internal financial control requirements. Appendix No. 8 of the 2009 report contains a statement of the system of internal financial controls. The report of the Comptroller and Auditor General on the 2009 accounts does not contain any criticism relating to a lack of review of the controls currently in place.

On the question of legal costs, at the start of 2009 a total of €3.3 million in recoverable legal costs was outstanding. A total of €804,000 was recovered in 2009, the bulk of which related to pre-2009 cases. However, a further total of €1.2 million in recoverable legal costs was also generated during the course of 2009. While the board continues to vigorously pursue all costs owed, its experience indicates that not all such costs will be recovered. The board continually reviews the recoverability of the outstanding legal costs and, in accordance with standard accounting practice, a certain proportion of such costs are written off for accounting purposes. A total of €648,000 was written off in the 2009 accounts. While it may be necessary to write off long-outstanding debts for accounting purposes, the debts remain outstanding in legal terms and may be recovered if this proves feasible. As a result of actions taken to recover debts and the re-designation of some debts as a result of final court decisions, the outstanding amount of recoverable legal debts reduced from €3.3 million at the beginning of 2009 to €2.7 million at the end of the year. This figure takes account of €1.2 million arising from court decisions in 2009.

The committee should note that due to a change in the 2010 Act, the legal cost recovery provision for some cases, including many cases of significance to the board, has been altered. The result is that, in future, the possibility of the board recovering its cost when it wins a case in legal challenges will be reduced. The amendment to the legislation was required to give effect to an EU directive on public participation. The new provision applies to cases involving the implementation of the EU EIA directive. Many such cases are dealt with by the board on an annual basis.

At last year's meeting, the Chairman requested that the board supply a breakdown of board decisions as they affect individual planning authorities rather than on a county basis. We have supplied this information to the committee this year.

Deputies have indicated their wish to contribute in the following sequence: Deputies O'Donoghue, Hogan, Ciarán Lynch, Christy O'Sullivan and Johnny Brady.

I take this opportunity to warmly welcome Mr. O'Connor, the chairperson of An Bord Pleanála, and his colleagues. It is a good opportunity for us to discuss issues of current concern. Few will doubt the de-population of rural Ireland or the continuing urbanisation of Ireland. Many hold that the urbanisation of Ireland runs in parallel with the Europeanisation of the country. Be that as it may, few issues are as contentious or sensitive in rural Ireland today as that of planning. Any practising politician will say that at various political clinics throughout one's constituency this issue arises again and again.

I accept fully that An Bord Pleanála must exercise its function in an independent manner, that it is, in the final analysis, a quasi-judicial body and, like Caesar's wife, is above reproach. That said and to return to my original point, the de-population of rural Ireland must be a cause of concern for every citizen, irrespective of what position he or she holds in society.

Among the principal problems I have encountered in my time - I am sure this is shared by many public representatives - is the situation whereby an individual with no proprietary interest in land in the vicinity objects to the granting of planning permission and the matter then goes to An Bord Pleanála. The chairman's figures for third party appeals against grants of permission resulted in refusals in 39% of cases. Does the chairman believe it appropriate that people with no proprietary interest in nearby land that is the subject of planning permission should have the right to object to that permission to An Bord Pleanála? Is it right that an individual living 50, 60 or 100 miles from a site may appeal to An Bord Pleanála the decision by a local authority to grant planning permission? This is of grave concern to those living in rural areas.

I say that against the backdrop of there being 2,800 ghost estates in this country at present, 156 of which are in County Kerry. Permissions was granted for these ghost estates that litter the country while families find themselves incapable of obtaining planning permission in rural Ireland, not just in terms of sites of which they might wish to dispose but in terms of providing homes for their families. This is a cause of the deepest concern and must be addressed.

I would also like to know if the chairman could outline to the committee the percentage of refusals that overturn the inspector's report. Where the inspector has made a report to the board making a recommendation, what percentage of these are overturned? It would be helpful if the chairman could outline to us the reasons for overturning these decisions.

While it is immensely important that mankind protect the environment, it should always be remembered that mankind is not there to serve the environment, but the environment is there to serve mankind. In our planning decisions we forget this, not just at local authority level but, dare I say it to Caesar's wife, at An Bord Pleanála level as well.

There are many people across rural Ireland, many of them personally known to me, who feel isolated, wronged and that they were the victims of injustice and intolerance as a result of planning decisions made on their properties. In many of these instances, in so far as there are cases which I have come across, a percentage of those people have every right to feel that way. I wonder if there is any solace or comfort that can be offered to them. In this respect I believe that while it is not the function of An Bord Pleanála to legislate, it is its function to give an informed opinion as to how the planning process might be improved in the interests of the individual and society.

Mr. John O’Connor

The Deputy asked about the rights of third parties to make appeals. It is a matter for the Legislature to decide if people should have the right to make third party appeals but it has been a feature of the Irish planning system since it was introduced in the 1963 Act and it has remained there since. In the 2000 Act, certain restrictions were placed on that right. A person could not parachute in from outer space at the last minute. There is now a requirement that a person must have made a submission to the planning authority before he can appeal the decision made by the authority. That is the major restriction that has been placed on the right. It is, however, a matter for legislators to decide.

As time has passed, the public has developed an interest in the environment, as is recognised increasingly in EU legislation, although many countries do not have third party appeals in the same way as us, but it is increasingly recognised that the environment belongs to everyone and everyone should have their say in terms of what decisions are made that may affect the environment.

The Deputy asked about the percentage of cases where the inspector's report is overturned by the board. There has been a steady figure of 12% to 13% over the years. The latest figure for last year was 13.7%. The 2000 Act introduced a requirement that when the board overturns an inspector's recommendation, it must say on the face of the decision the reason for doing so.

The third point related to the more general issue of rural housing. The board's role in this should not be exaggerated. As a result of previous representations by this committee, the board has taken to putting into its annual report a table detailing rural housing cases that come before it. The table shows in appendix 5 of last year's report that the board dealt with slightly more than 500 cases. Only about 9% of planning authority decisions ever come to the board. The percentage for one-off housing is probably even less. The Government issued planning guidelines under section 28 of the Act that set out policy for rural housing and these guidelines are the board's bible for dealing with the cases that come to it.

The chairman might explain the number of cases that have been referred in respect of one-off houses and how many were refused on appeal.

In the course of the 2010 planning Act, about 90 sections were put through without debate so the chairman is the first person we have met who might know something about them. Substitute consents and appropriate consents are new terms to us. Could the chairman bring us through the process whereby a substitute consent is sent directly to the board and can only be granted by the board? What are the procedures and what is the timescale?

The legislation also introduced the concepts of remedial environmental impact statements and remedial natural impact statements. I do not understand what those mean. What would the costs be for the applicant?

Until today I had not noticed the Minister for the Environment, Heritage and Local Government had indicated his intention to transfer functions under the Foreshore Act from his Department to An Bord Pleanála but that he will await primary legislation. When did he decide to do this? I had not heard about that matter until today or about whether it had anything to do with recent controversies relating to Poolbeg.

Statutory bodies appear to have developed a new-found interest in appealing matters to An Bord Pleanála. I refer, in particular, to the National Roads Authority and the National Parks and Wildlife Service in this regard. I am surprised by this new development. Not only does this delay proceedings - there are others who also delay proceedings - the National Roads Authority is obliged to contract engineers and other professionals to send in submissions. One would have thought the statutory bodies to which I refer would have better things to do than oblige An Bord Pleanála to use its precious time resolving matters of this nature. I would have thought that such bodies would have other mechanisms available to them in this regard. Obviously that is not the case.

I welcome the fact that Mr. O'Connor indicated that the Act is going to be implemented in a sensible and balanced manner. If the latter were not the case, we could damage our competitiveness. The corollary of what he said is that the implementation of the Act has the potential to damage our competitiveness and that it may not be implemented in a sensible and balanced manner. It is obvious that some of the sections contained in the Planning and Development (Amendment) Act 2010 are a cause for concern for An Bord Pleanála, particularly - in the context of promoting projects, employment and competitiveness - if they were to be implemented in an unbalanced manner. I welcome Mr. O'Connor's statement in that regard. Perhaps he might indicate the particular sections about which he is concerned.

Mr. John O’Connor

Deputy Hogan posed quite a number of questions. The chief officer is more familiar with the details relating to the provisions in the Act and, therefore, I will ask him to comment on that matter. We are trying to bring ourselves up to speed with regard to the Act which has not yet been brought into force but which is fairly imminent. We are on a steep learning curve in respect of it at present.

The Deputy referred to costs and the issue of sensible implementation. In my opinion, the two go together. As the Deputy stated, the select committee dealt with the legislation which is extremely complex in nature. To be honest, it takes quite an amount of work to figure out its provisions. We are involved in such work at present. In the past two days, we have had meetings with all our inspectors to develop procedures, etc. relating to the implementation of the Act.

I am commenting here in respect of EU directives, European heritage sites, EIA directives and so on rather than on the provisions in the legislation which relate to plans, etc. The latter provisions form a major part of the Act. I am concerned with the aspects of the legislation relating to the regularisation of developments to bring them into line with the requirements of the European Court of Justice and the European Commission. If a sensible, balanced approach is not taken by local authorities, the statutory bodies to which the Deputy referred and An Bord Pleanála, we could end up with a very bureaucratic and legalistic system which might not lead to a great pay-off in the context of protecting the environment. As the Deputy suggests, such a system might also damage competitiveness. In the current climate, we must be very conscious of ensuring such damage does not occur.

Deputy Hogan also inquired about the Foreshore Act. I referred to the latter in the context of An Bord Pleanála's workload next year. In the past four or five weeks the Minister made a statement to the effect that it is his intention to transfer functions under the Act to An Bord Pleanála. As already stated, however, primary legislation will be required in this regard. The matter will be dealt with by the committee before it begins to affect An Bord Pleanála.

I will now ask the chief officer, Mr. Thornton, to provide a breakdown in respect of the provisions in the Act to which Deputy Hogan referred.

Mr. Padraic Thornton

The Deputy inquired with regard to the substitute consent provisions. Essentially, these arise because, in the aftermath of the European Court of Justice judgment of 2008, it is no longer possible to obtain permission to retain a development in respect of which an environmental impact or other appropriate assessment is required. This is the case even though the judgment to which I refer allowed for the fact that there might be exceptional circumstances in which the regularisation of something which had been done could be permitted. The substitute consent procedure is designed to circumvent this type of difficulty in circumstances where a development may have been proceeded with and where there were genuine reasons the applicant was not aware of the fact that an intensification of use or whatever had resulted in his development coming within the requirements of the directive. Under the relevant provision, developers who are of the view that exceptional circumstances obtain may apply to An Bord Pleanála for leave to apply for substitute consent. If such leave is granted, in exceptional circumstances, then an application in respect of substitute can be made.

There are also some cases where, as a result of a court decision, a permission might be held to be invalid after the event, perhaps some considerable time after that permission was granted. In that context, a planning authority can in some cases inform developers to apply to An Bord Pleanála in respect of obtaining substitute consent. The relevant provision represents an attempt to put in place some type of system to regularise situations where exceptional circumstances arise in instances where applications for retentions are no longer allowed.

There is a special provision under which planning authorities must assess all the quarries within their functional areas. If the authorities come to the conclusion that certain developments in respect of which environmental impact or other appropriate assessments would have been required were carried out at quarries after various dates and if the owners of such quarries had obtained permissions or if the quarries were in operation since prior to 1964, they may direct the relevant individuals to apply for substitute consent. This is similar to retention but it is now identified as substitute consent. Such consents arise in circumstances where previous permission did not adequately cover the environmental impact assessment requirements laid out in the European Union directive.

Is this where exceptional circumstances would arise?

Mr. Padraic Thornton

Yes. There is a special provision in respect of quarries whereby, for a particular period, their owners or operators are not obliged to prove exceptional circumstances if they comply with other provisions in the legislation. The idea behind remedial environmental impact and natural impact statements is that they will apply where developments were carried out and where they may give rise to problems relating either to the environment or to natural heritage sites. These statements will contain provisions in respect of remediating the problems to which I refer. The remedial actions required in respect of a particular development would have to be set out in the environmental impact or natural impact statement.

Those are the two provisions about which the Deputy inquired in the context of the 2010 Act. The commencement orders relating to them have not been made and, therefore, they have not yet come into effect.

Mr. John O’Connor

As the Deputy is aware, quarries have been an ongoing problem within the planning system. This should be viewed as a final opportunity for those involved in the business to resolve matters once and for all. In the past there were all sorts of difficulties with regard to every quarry in the country being designated as having commenced operations prior to 1964. The registration provision introduced in the 2000 Act did a certain amount but it did not achieve its full purpose. This is the final position for everyone involved to regularise the position in respect of quarries in order that we will have a clean slate going forward.

What is the position with regard to statutory bodies such as the NRA making appeals to An Bord Pleanála? Is there a way to resolve the matters in respect of which such appeals might be made without the need for An Bord Pleanála to be involved?

Mr. John O’Connor

In my experience the NRA works quite closely with local authorities, local road design offices, etc. Many problems are resolved locally. There are a number of instances, however, where appeals are lodged. The NRA has a statutory obligation to protect the carrying capacity of roads, investment in the national road network and so forth. I suppose the NRA considers that in circumstances where a satisfactory solution cannot be arrived at, it has no other option but to appeal.

Was An Bord Pleanála not asked for its views during the consultation process relating to the Planning and Development (Amendment) Act 2010? I ask this in light of the number of meetings being held among its staff at present in respect of the Act's implementation.

Mr. John O’Connor

No. I do not want to exaggerate the position. When complex legislation of this sort is introduced, we are obliged to bring our inspectors together to discuss its implementation and to ensure everyone is fully familiar with its provisions. The scope of the meetings taking place does not go any further than that.

In terms of consultation, ultimate responsibility for the legislation lies with the Minister. There would be a certain level of consultation with An Bord Pleanála but we would not be involved in drafting the legislation.

Was An Bord Pleanála consulted and, if so, what was the level of such consultation?

Mr. John O’Connor

There was a certain amount of consultation.

I refer to the national spatial strategy, which is being refreshed, according to the Minister. There is a fine line between review and refresh. If it is reviewed, does Mr. O'Connor consider that it should be subject to the appropriate legal mechanisms of a strategic environmental assessment? Is that the board's responsibility?

Mr. John O’Connor

That is not our responsibility at all. We do not deal with the application of directives to plans.

What is the position of the board on appeals against the extension of planning permissions for a further five years, which is provided for in legislation?

Mr. John O’Connor

There is no right of appeal in that area.

What are the figures for one-off houses? How many permissions were granted and refused?

Mr. John O’Connor

I refer the Deputy to appendix 5 of the report. A total of 510 cases came before the board. Permissions were granted in 19% of cases and refused in 81% overall. That includes first party appeals against refusals and third party appeals against grants.

So 81% of appeals in one-off housing applications in rural areas were refused.

Mr. John O’Connor

Yes. Some of those would have been refused by the local authority. It is broken down in the documentation. On the left, one has appeals against refusals where people's application to the local authority is appealed. In those cases only 10% were successful. On the other side, one has appeals against grants by third parties and permission was granted in 27% of those cases and refused in 73%.

I direct the committee's attention to area type where members will get an idea of the type of area we were dealing with in the appeals. The majority of them were in areas under strong urban influence. Those are areas close to cities and towns where more than likely there is a heavy concentration of one-off houses. When one goes to the weaker rural areas, the percentage of cases that came before us is quite small.

I would like to clarify that 73% of cases in rural Ireland where local authorities granted permission were refused following objections to the cases-----

Mr. John O’Connor

Of the 510 cases that were appealed to the board.

The new planning and development Act deals with the European Court of Justice and Mr. O'Connor mentioned quarries. Has the same happened in the other member states? Are we the first up to be the best Europeans or are we the last?

Mr. John O’Connor

I could not give an answer on that.

Does Mr. O'Connor have any information or knowledge?

Mr. John O’Connor

Legally, the rulings of the European Court of Justice apply across all countries. Once it gives a ruling, even in an Irish case, all other countries must have regard to it.

I understand that but I refer to the response of national parliaments. We have passed our legislation and the board is dealing with it. Does Mr. O'Connor know whether all member states have done likewise or are we the first up?

Mr. John O’Connor

I cannot say. Unfortunately, I do not have the answer to that.

Can Mr. O'Connor understand, given the figures he outlined, how people in rural Ireland have a right to feel frustrated?

Mr. John O’Connor

As I said to the Deputy previously, the board has guidelines. The guidelines set out certain policies and the board tries to the best of its ability to follow them.

Of course, but local authorities set out certain guidelines and Mr. O'Connor has told us that in 73% of cases in rural Ireland where local authorities granted permission for houses, the board refused permission on appeal, overruling the local authority, which also has planning guidelines.

Mr. John O’Connor

Yes.

How many of those cases involved the board overruling the county development plan?

Mr. John O’Connor

Generally, they were in rural areas on zoned lands and so forth. That is a different question to answer in those circumstances.

I welcome Mr. O'Connor and his team. They last appeared before the committee on 28 October 2009 and a few matters arose from that meeting.

It is interesting that Mr. O'Connor said it is impossible to meet the SIAs within the 18-week timeframe in some cases and that it is not just problematic. Will he explain why this is happening because the board has a legislative duty to process the applications within 18 weeks?

Mr. O'Connor said that 70% of standard local authority planning applications are hitting within the 18-week guideline with 30% outstanding. An Bord Pleanála has three functions and this ties in with the comments of Deputies Hogan and O'Donoghue. It confirms, varies or reverses a decision made by a local authority. The bottom right-hand corner of appendix 2 outlines the national averages for the numbers of decisions confirmed, varied and reversed. The figures are almost the same year in, year out for different local authorities. For instance, Kerry County Council has one of the highest percentage of appeals to An Bord Pleanála. It has the second highest number outside the Dublin local authorities. Last year, I put the point to Mr. O'Connor that the same local authorities year in, year out had the majority of their decisions overturned by the board while others performed well according to the board's criteria. Coincidentally, Cork City Council is performing well this year. Donegal County Council, however, performed poorly in 2009 and once again it is the worst performer.

Is there communication between the board and the local planning authorities in order that figures are not distorted when one moves from one local authority to another? The national average for decision reversals by the board is 33.5%. Cork City Council is lowest at 22% whereas Donegal County Council is at almost 60% or approximately twice the national average. Does the board go back to local authorities to tell them they are creating significant work for the board and its members do not want to reverse all the decisions, and to ask them whether the issues can be ironed earlier in the planning process? The local authorities and the board work to the same legislation and, therefore, there should not be such discrepancy between what the local authorities and the board are doing.

The Minister announced with great fanfare in the Chamber last year that he had provided the board with seven additional staff to deal with a backlog of SIAs, in particular. When I pursued Mr. O'Connor at last year's meeting on these appointments, however, it turned out the seven people were still based in their local authority offices and that the volume of work they were doing equated to one whole-time post. It was not the case that seven people were handed over to An Bord Pleanála because there was in effect an additional person. I imagine that meat and potatoes planning applications and the workload of local authorities have decreased dramatically in the past 12 months, leaving aside strategic infrastructure applications and the Planning and Development (Amendment) Act 2010. Has there been a change to the whole time post which is at present divided across seven people in seven different local authorities?

Mr. John O’Connor

The Deputy noted that I had mentioned the difficulties in meeting the statutory 18 week limit for strategic infrastructure developments. I want to be upfront with the committee by stating that it is not possible to meet the statutory deadline in respect of many of the larger cases. One of the main reasons for this is even with the pre-application consultation process, which was introduced to avoid further information requests, we continue to find that we have to request extensive amounts of further information about the features of large or complex projects. I stated at the outset that an 18 week time limit was never realistic for some applications. It is our general policy to hold oral hearings on these cases to ensure a thorough investigation is carried out with full public participation. It is difficult to square this work with an 18 week timeframe and this is why I told the committee that it cannot expect us to comply with EU requirements and conduct a thorough investigation within that period in all applications. We try our best and are successful in keeping within the period in some cases but it is simply not possible in all of the bigger cases.

When we discussed this issue last year, I told Mr. O'Connor that I interpreted European law to mean that every strategic infrastructure application requires an oral hearing.

Mr. John O’Connor

That is our general policy.

An Bord Pleanála cannot complete its work within 18 weeks while also complying with EU directives.

Mr. John O’Connor

It is not unusual for some of these hearings to last three or four weeks. Members can imagine the volume of material which must be processed by the inspector and the board before a decision can be made.

The Deputy asked why we are only processing 70% of meat and potato applications within the 18 week timeframe. We are disappointed with that figure because, while we acknowledge that it is not possible to process every application within 18 weeks, we set ourselves a strategic target of 90%. I hope to get much closer to the latter figure in the next couple of months.

Reference was also made to the breakdown by local authority of decisions overturned by the board on appeal. This is an annual feature of our reports and it has been frequently commented on. The Deputy asked whether the board could better communicate with local authorities which are high on the league table. We have a quasi-judicial function and it is not our job to tell planning authorities how they should do their jobs.

Does the board not operate under the same planning legislation?

Mr. John O’Connor

We do operate under the same legislation. When we make a decision we set out our reasons for it and the inspector's report is also available. It is up to the local authority to apply our findings in their own areas. The performance indicators which the Department of the Environment, Heritage and Local Government prepare on local authorities include the overturn rate.

In regard to additional staff from local authorities, the Deputy is correct to state the people concerned will never fully transfer to the board. We availed of their time to a limited extent and the numbers involved in this work have declined to two local authority planners since I last appeared before the committee. I understand they are responsible for four files.

Last year the Minister for the Environment, Heritage and Local Government announced that he was making seven planners available to the board. It transpired subsequently they were never moved from the local authorities in which they were employed.

Mr. John O’Connor

That is correct.

I presume, therefore, the two individuals concerned remain in the employ of their respective local authorities. Given that the original seven staff were the equivalent of a wholetime post, do the remaining two planners have the same equivalence?

Mr. John O’Connor

No.

Is it a matter of dividing seven into the equivalent of one whole time post?

Mr. John O’Connor

Their contribution is very small. The are responsible for four files out of a total of 1,000.

It is therefore not even one quarter of one wholetime post.

Mr. John O’Connor

Perhaps my director of planning, Mr. Johnson, might like to comment.

Mr. Des Johnson

To put the matter in context, an inspector would be expect to produce 12 files per month on average.

When the files are closed, will the planners return to their local authorities or will they be given additional work?

Mr. John O’Connor

They never left their local authorities.

I know that but will their caseload end with the closure of the remaining files?

Mr. Des Johnson

They will be available to take additional files and it is our intention to give them additional work. However, they also continue to work with their respective local authorities.

The Minister indicated that he was providing the board with additional staff resources.

Mr. John O’Connor

We have to keep the issue in perspective. It is not a big issue with us at present because our resources are adequate to demand.

The board is only meeting the 18 week target in 70% of its cases and Mr. O'Connor stated that strategic infrastructure applications are impossible to process within that period. Staff are twiddling their thumbs in planning departments across the country. Is Mr. O'Connor going to state that the board's inability to meet its 18 week statutory requirement is not a problem?

Mr. John O’Connor

We are rapidly catching up on our strategic targets and the resources currently available to us will be adequate to meeting them.

Is Mr. O'Connor confident that both the meat and potatoes and the strategic infrastructure applications will be within the 18 week statutory requirement by the time he comes before us next week?

Mr. John O’Connor

I do not expect to be here next year because my term of office expires in June. If the resources are available to us, we will use them when we need them.

Was the decision that the other five planners would no longer be required taken by the board or the Department?

Mr. Des Johnson

All of the original seven individuals were involved in development control in their respective planning authorities. Five of them have since been transferred from development control to forward planning duties.

Who transferred them?

Mr. Des Johnson

They were transferred by the planning authorities.

Mr. John O’Connor

Their employers.

Mr. O'Connor has set out some interesting figures. My colleague, Deputy O'Donoghue, eloquently outlined the position that I would take in regard to rural development. In my time as a public representative, I never dealt with housing estates but I regularly make representations on behalf of rural people. I will begin with the lowest figure of those mentioned in the presentation, the 14% of inspectors' recommendations which are rejected by the board. I find it very hard to understand that, particularly when inspectors visit the sites and go into every detail of the planning. They take their role seriously, yet when they come back and report and make their recommendations, some 14% are rejected. The board may feel that is a very small percentage, but it is not small in my book. That percentage is quite a joke for inspectors' planning recommendations, which have already been recommended in most cases by local authorities.

Mr. John O’Connor

Some of the recommendations being overturned are in favour of granting permission and others are in favour of refusing permission. It works out at approximately half and half.

Have we a breakdown on the figures?

Mr. John O’Connor

From previous research into the issue, I believe it is roughly half and half.

I started with the smallest issue. On the question of refusal and permission granted by An Bord Pleanála, how many of those applications are brought to the board's attention by An Taisce? It has been suggested that the NRA and the National Parks and Wildlife Service of Ireland are becoming involved in this area. Can we have a breakdown of how many of the appeals that come before the board are brought to it by An Taisce, the NRA or the National Parks and Wildlife Service of Ireland?

I was alarmed by the latest figure provided by Mr. O'Connor to the effect that 73% of permission granted by local authorities that come before An Bord Pleanála are refused by the board. This is a staggering and frightening statistic. Local authorities have the responsibility to put the local area plans together and they put a great deal of work into those plans. They have senior planners, planning policy units, engineers and various others involved. However, despite these qualified people seeing fit to grant planning permission, some 73% of those that come before An Bord Pleanála are refused. This is a staggering percentage. How can I go back to my constituents and explain how that happens? Can Mr. O'Connor help me along that trail when he responds?

On the make up of the board of An Bord Pleanála, it is quite evident from the number of rural people being refused planning permission that we have no rural representation on the board to represent people who want to build a house for their family, usually on their own land. This must be addressed. How many representatives of rural people are on the board or how are rural people represented?

I wish to be associated with others who have welcomed Mr. O'Connor and his colleagues. Mr. Hunt served in Meath in my early days as a councillor and I am pleased to see him here. He will know my views on rural planning from when I was first a member of Meath County Council in 1974. There was not much difficulty with planning at that time. It has only been in later years that planning has become difficult.

Deputy O'Donoghue spoke for all of us earlier when he expressed his views and concerns. We are all annoyed that so many young couples trying to provide a home for themselves in which to rear a family, who in many cases have a site provided by their parents or relatives, perhaps as a wedding present, have so many difficulties with the planning process. When they go through the process with the local authority and are granted planning permission, they often find objections are made by somebody who lives miles away or somebody who has previously got planning permission but does not want anybody living beside them. Sometimes people who have moved from the cities and bought houses in rural areas object to applications from local people who were bred, born and reared in the rural area. Planning permission is appealed to An Bord Pleanála and the decision of the local council is overturned.

It is frightening to hear that some 73% of council decisions appealed to the board are reversed. No matter what we are told here today, I agree with Deputy O'Sullivan that environmentalists in An Taisce seem to have high success results in their appeals to the board. Another serious concern is that some planning consultants also have great results. Applicants whose cases have been appealed to the board have told me that if they are lucky to acquire the services of these consultants first, before the objectors, they have a great chance of getting planning permission. This is incredible. I have also been told by people who have been refused planning permission by the board that some consultants, who are people who have retired from the board, have great results. It is alarming that this may be a true reflection of the situation. I am not making the allegation, but It has been made by people who have been refused planning permission.

I also have some questions with regard to industrial and commercial planning. Mr. O'Connor has said that while the majority of cases are disposed of within 18 weeks, the board is continuing its efforts, within available resources, to achieve its strategic target of discharging 90% within that timeframe. I am aware of a €40 million project for which planning permission was sought has now been waiting way beyond 18 weeks. The time for making a decision on the project has been extended several times. The applicant was told a decision would be made earlier this year, but no decision has been made yet. If this project got the ahead from An Bord Pleanála - it got the go ahead from the county council, but that decision was appealed -----

Mr. John O’Connor

I am sorry, but we cannot discuss individual planning applications.

I will not discuss the planning application. I do not want the board to do that. What I want to know is why there is such a delay in making a decision on these applications. I understand the board's situation and am not asking it to discuss an individual application. I am just giving an example. What is the reason for the delay with decisions. We understand the board is no longer under the same pressure it was four or five years ago. I cannot understand why decisions on projects which would provide significant employment are being delayed. We could provide employment to people in the construction of some of these projects and full-time employment to others in the future. The delay in making a decision annoys me very much. Why is this the case?

I thank the members for their presence here today. Much of what I want to say has been said already but it needs to be repeated. With regard to An Bord Pleanála sending inspectors to inspect sites, I am aware of an objection to a planning application lodged by an individual 120 miles from where I live. There was positive discrimination in the granting of planning permission because the area in question needed people living in it. When somebody 120 miles away objects, the inspector visits and recommends a granting of permission, upholds the council's decision and the board refuses. That causes no end of trouble for everybody and it looks wrong. I do not know how this will be dealt with but this problem needs to be addressed. It is the case that when the inspector gives a report, two people on the board can decide whether to grant or refuse permission. It is not very democratic that two people can make this decision. I am not saying the two people are doing anything wrong but three people making the decision would result in a fairer decision. What happens, for instance, if the two members disagree? This issue has been raised with me quite recently.

The NRA is a prescribed body and is quite entitled to object to planning applications. I am aware of an objection to an application by a farmer with 90 acres by the N16 who wants to build a house for his wife and family with a road leading to the N16 because of upgrading on the N16.

Mr. O'Connor said he will not be here next year. If he were here in 20 years, that road will still not be upgraded. I can understand the NRA not allowing planning permission on the N4 because there is a realistic chance of an upgrade within the next seven or eight years. If objections are to be lodged, particularly in respect of applications by farmers who must live on their land to survive, one should at least be able to say that the proposal cannot be agreed to for a certain number of years until such a development takes place. It is very wrong that they can do this willy-nilly.

It was stated that 73% of planning applications are granted permission. Local authorities, be they in Sligo, Leitrim or elsewhere, do not grant planning permission easily. One must tick all the boxes, particularly in areas that are designated to be under urban influence. I am aware of a case in which two or three people objected to an application by an individual. The case was submitted to the board and permission was refused. The man reapplied for permission and the people who objected in the first instance did not object on this occasion but then An Taisce entered the equation. The individual in question, a young man, spent €20,000 on applications and is struggling to survive with his wife and two children. He decided to build a house in an area in which he was born and reared. He contributes to the local community and plays on the local football team, and his children attend the local school and have done since they were eligible to do so, as he did. This is very wrong and it is very unfair on people. Individuals spend an awful lot of money obtaining planning permission. They go to preplanning meetings with local authority planners, only to find themselves caught in a trap afterwards. They are trapped by people who really and truly, in some cases, should have no right to object to the planning applications.

Mr. John O’Connor

I will respond to Deputy Christy O'Sullivan first and then to Deputies Johnny Brady and Scanlon. Deputy O'Sullivan has a problem with the board overturning inspectors' reports. It works out that it is generally half and half as regards acceptance or rejection. Ultimately, it is not for the board to decide the rights as this is a matter for legislation. The legislation gives the power to a meeting of the board to decide the outcome. If the legislators wanted to give that power to the inspector, the Houses of the Oireachtas could do so by changing the system. The existing system is in place since An Bord Pleanála was set up in 1977. The board must operate according to the system and would not have the power, even if it wished, to delegate decision-making to the inspector. The decision is with the board and it has responsibility therefor.

I ask Mr. O'Connor to give a typical example of how an inspector's decision is overturned.

Mr. John O’Connor

In every case the board is obliged to give a reason when it goes against the inspector's recommendation.

Can Mr. O'Connor give a typical example?

Mr. John O’Connor

It could be in any situation. It could be associated with traffic. The three main reasons for refusal concern water, traffic and settlement policies.

Surely any qualified inspector could make such a judgment when visiting a site.

Mr. John O’Connor

If the inspector's word was regarded as final there would be no point in having a board. However, there is a board and it makes its call. That is the current position.

The board members make the decision without ever seeing the site themselves. There is no appeal.

Mr. John O’Connor

The board would refer to the local authority file, the appeal documentation and the first party's response. Taking all these together, the board comes to a decision. This is the process under the legislation.

Reference was made to An Taisce, the NRA and the National Parks and Wildlife Service, and to the proportion of cases for which they are responsible. I took the opportunity to look at the figures. In our survey of one-off house decisions, we do not distinguish between particular appellants. However, we take prescribed bodies into account. An Taisce, the NRA and the National Parks and Wildlife Service would become prescribed bodies. Of the 500 appeals made in 2009, 85 came from prescribed bodies, including An Taisce and the NRA.

Mr. John O’Connor

Most of the third-party appeals in rural housing cases come from neighbours. Very often neighbours are concerned about their well water and such matters, or perhaps the boithrín up to the site is not wide enough to take the existing traffic and proposed new traffic. These are the sorts of issues typically raised by third parties. The third party appeals are mainly by neighbours rather than prescribed bodies.

I asked specifically for statistics on rural houses.

Mr. John O’Connor

It is exclusively about rural houses.

What percentage of appeals would be made by An Taisce or any of the prescribed bodies?

Mr. John O’Connor

A total of 85 cases, which is 16%.

Regarding rural houses?

Mr. John O’Connor

Those statistics relate to the third party appeals relating to rural houses coming from prescribed bodies, 16.6%.

That answers my question. One could say it is the majority of appeals. It is just what I expected.

Mr. John O’Connor

The Deputy raised the question of the composition of the board and rural representation. I have no responsibility for the composition of the board as this is a matter for the Minister. Statutory provisions and panels are all laid out in the Planning Acts which the Minister must follow in making appointments to the board.

I agree that only the Minister should be responsible for the composition of the board. My question is whether there is a rural representation on the board.

Mr. John O’Connor

I do not understand the Deputy's reference to rural representation.

Is there a member of An Taisce on the board?

Mr. John O’Connor

No. To put members' minds at ease, we have a code of conduct and it would be completely out of order for a member of An Taisce to serve on An Bord Pleanála.

Are rural dwellers represented on the board?

Mr. John O’Connor

No, there are no rural dwellers, as such, represented on the board.

How does the board work if no member of the board has knowledge of rural living or how things are done in rural Ireland?

Mr. John O’Connor

I come from north County Cork on the far side of the Derrynasaggart Mountains from the Deputy. To say to me that I have no knowledge of rural-----

Mr. John O’Connor

My family still resides in the area from which I came and to tell me that I have no knowledge of rural areas is going a bit far, with due respect to the Deputy.

I did not suggest Mr. O'Connor did not have such knowledge. I am sure he does not sit in on every meeting where decisions are taken.

Mr. John O’Connor

That is true.

That is my point. When a decision on planning in a rural area is being made somebody with knowledge of rural areas should be involved.

Mr. John O’Connor

Deputy Johnny Brady raised many of the same issues as Deputy Christy O'Sullivan. He expressed concern that some planning consultants got favourable treatment. I can reassure him that there is no question of anyone being favoured. The board takes care to ensure it deals impartially in all cases. There is no question of anybody having an inside track or anything like that. We have a strict code of conduct which applies to all members and I have total confidence in the integrity of the board. I respect the Deputy's right to disagree with a board's decision or whatever, but I could not accept any aspersions on the integrity of the board, which I would defend strongly.

Mr. O'Connor can understand the grievance people feel when they are turned down.

Mr. John O’Connor

Of course I can.

People say this to me and probably to others also.

Mr. John O’Connor

People will always have a grievance.

I personally am not making the allegation.

Mr. John O’Connor

I would hope the Deputy could assure them that he meets members of the board here on a regular basis and that there is no question about their motives, whatever about their competence.

I have had many dealings with Mr. Hunt and have the height of respect for him.

Mr. John O’Connor

That should make it easy for him to reassure those people.

The Deputy talked about a delay in a major project, but I cannot comment.

I understand that.

Mr. John O’Connor

If the Deputy comes to me afterwards and gives me the details on the question of a delay, I will come back to him on it, but I could not discuss anything about any case before the board. The board is very conscious about the employment implications of our decisions or any delays and that is why we are striving to ensure we deal with all these cases in the least possible time.

Deputy Scanlon expressed concern that the 2010 Act provides that two people on the board could make a decision. Again that is a matter for these Houses and not a matter for us. The Legislature in its wisdom included that in the 2010 Act. However, it has not yet been brought into force. As of now it cannot happen. That section of the Act has to be brought in by ministerial order before we will be able to decide a case on a two-member board. The legislation is quite circumscribed in that it is only in certain types of cases and only for a special period of time when the pressure of work and so forth on the board would justify it. As of now it has not been brought into force and it may not be; I do not know. It is a matter for the Minister at the end of the day.

The Deputy mentioned the National Roads Authority making appeals, which I dealt with earlier. It has its own job to do and the board has its job to do. However, the board does not always agree with the NRA and there have been many occasions when the board has not accepted the submission of the NRA. The board has responsibility for the decision it makes at the end of the day. If there is anything else I did not cover, I would be glad to come back.

Given that so many of the interurban motorways are now complete and all the former national roads are relegated to - let us call them - regional roads, what is the general approach of the board to people wanting to build along what are now designated as regional roads because they are no longer national roads? The board must have a view and those cases must come before it regularly given that those roads now simply serve bypassed towns.

Mr. John O’Connor

The first thing to say is that once it has downgraded the roads to regional routes, the NRA does not lodge appeals. I might ask Mr. Hunt to comment on-----

There are many roads in that category.

Mr. John O’Connor

-----the way the board approaches the issue of regional roads when there are appeals.

Mr. Brian Hunt

Some of the local authorities have specific policies towards what they would describe as class A regional roads which would have considerable traffic. These strategic regional routes are being protected in development plans. It depends on the individual cases in different parts of the country. One could think of many roads that within a couple of years have almost the same amount of traffic they had before they were bypassed. So the protection of these strategic routes is important and it is recognised in county development plans.

I agree with Mr. Hunt because that has been the policy in Meath for some time and not just since the motorways were opened. Unless one is involved in agriculture, one has no chance of getting planning permission.

I thank the representatives of An Bord Pleanála for their presentation and the very informative discussion we had during which every member had an opportunity to put questions and receive answers even if they might not all be happy with the answers.

The joint committee adjourned at 5.55 p.m. until 3.30 p.m. on Tuesday, 16 November 2010.
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