An Bord Pleanála

Dáil Éireann Debate, Tuesday - 18 May 2021

Tuesday, 18 May 2021

Ceisteanna (387)

Alan Kelly

Ceist:

387. Deputy Alan Kelly asked the Minister for Housing, Local Government and Heritage the implementation status of the organisational review of An Bord Pleanála published in 2016; and the implementation status of each of the 101 recommendations contained in the report in tabular form. [26060/21]

Freagraí scríofa

Minister of State at the Department of Housing, Local Government and Heritage

An Organisational Review of An Bord Pleanála was undertaken by an independent expert panel and published in March 2016. An Implementation Group, comprising representation from the Department and An Bord Pleanála, was established to oversee the implementation of the Review recommendations.

The Review contains 101 recommendations relating to legislative provisions, communications and stakeholder engagement, the Board's role and governance along with organisational and operational matters. 

The Implementation Group published its Terms of Reference and Plan for Implementation in 2016.  An Bord Pleanála, supported by the Department, as required, took the lead in the implementation of a large number of the key recommendations, with the Department taking the lead in examining recommendations requiring legislative underpinning.  A small number of recommendations were not accepted.

A review of the implementation of all 101 recommendations is currently being conducted with a view to publishing the final report on implementation by the end 2021.

An update on the implementation status of each of the 101 recommendations contained in the report has been requested by the Deputy in tabular form.  This information is being compiled and will be forwarded to the Deputy in accordance with Standing Orders.

The following deferred reply was received under Standing Order 51

Status of the recommendations of the 2016 Organisational Review of An Bord Pleanála

Status	Explanation
Complete	Recommendation addressed, no further action necessary
Ongoing	Recommendation in train or yet to be decided upon
TBD	To be determined in a review of legislation

The Government has an extensive planning legislative agenda, which currently includes two planning and development bills, and the opportunity to take on board any legislative changes suggested in the Review is being considered in that context. The updating of legislation and guidelines remains an ongoing process and as specific matters arise, clarifications are issued to Planning Authorities via Circulars.

Theme 1 – Legislation and Governance

No.	Recommendation	Status
No.	Recommendation	Status
1	That a greater emphasis and commitment be made to addressing the complexity of planning law, by codification and consolidation of the legislative framework, with the aim that the planning system operates within a clear comprehensive code. The Government should consider as a matter of priority the setting up of a legislative review with a view to proposing a simplification of the legislation.	TBD
2	That the recommendation of the Environmental Protection Agency Review Group concerning a wider review of environmental governance be implemented as a matter of urgency.	TBD
32	The current legislative provisions need to be reviewed in order, amongst other things, to ensure that An Bord Pleanála may award costs against any party to proceedings before An Bord Pleanála who has acted unreasonably.	Ongoing
36	The legislation should be amended if necessary to enable where appropriate the Board to address objections to its jurisdiction to determine an appeal/application by way of a preliminary ruling. Subject to the necessary legal powers being in place, a practice should be adopted by An Bord Pleanála enabling inspectors, where appropriate, to refer to the Board objections to An Bord Pleanála’s jurisdiction for possible determination by way of a preliminary ruling and An Bord Pleanála should publish guidance to its inspectors as to the circumstances where it considers such a referral to be appropriate.	Ongoing
38	Pre-application discussions should be mandatory for all potential Strategic Infrastructure Development applications including all Local Authority Strategic Infrastructure Development proposals or for proposals to amend Strategic Infrastructure Permissions under Section 146, and legislation should be amended accordingly.	TBD
39	The definition of qualifying Strategic Infrastructure Development developments should be clarified to avoid unnecessary mandatory pre-application consultation on small project types which are known to fall outside the scope of Strategic Infrastructure Development.	TBD
41	To avoid consultations remaining ‘live’ in circumstances where the prospective applicant is not pursuing a proposed development, but has not withdrawn from consultations, it is considered prudent that An Bord Pleanála is provided with the power to close off consultations unilaterally in appropriate circumstances.	Ongoing
44	A scoping request for an Environmental Impact Statement to proceed alongside pre-application consultations should be permitted once the Board has decided that the proposed development constitutes a Strategic Infrastructure Development. Scoping should be kept as a separate process to pre-application consultations but should be allowed to run in parallel with the consultation process.	Ongoing
66	Smaller scale development proposals should generally be determined by a division comprising of a single Board member, unless that Board member disagrees with the inspector’s recommendation, in which case the decision should be made by a three-member Division of the Board.	Ongoing
67	Section 5 Referrals should be determined by a Division comprising of a single Board member, unless that Board member disagrees with the inspector’s recommendation, in which case the decision should be made by a three-member Division of the Board.	Ongoing
70	For reasons of consistency and transparency legislation should be amended and the provisions of section 34(10) of the 2000 Act, which require the Board to indicate the main reasons for not accepting the recommendation to grant or refuse permissions, should apply to Strategic Infrastructure Development cases.	Complete
72	Section 37F(1)(b) of the 2000 Act should be amended to encompass all appeals which would allow the Board to state that it is minded to grant permission but to still seek further information on a specific item, thereby allowing the Board to explore specific technical items that remain unclear to ensure that, for example, conditions to a grant are technically implementable.	TBD
73	It is recommended that cost recovery clauses should be inserted into section 146B of the Planning and Development Act 2000 in the same manner as is applied to ‘parent’ strategic infrastructures cases.	Complete
75	Legislation should be amended to require An Bord Pleanála to give a realistic expectation for particular cases if it is considered at the outset that the timescales may run beyond the statutory objective period or any other revised timeframe provided.	TBD
76	The following statutory objective timeframes should apply to An Bord Pleanála’s work, with a view to their progressive realisation: General cases not requiring oral hearings 12 weeks- General cases requiring oral hearings 14 weeks- Strategic Infrastructure Development cases 22 weeks- Section 5 Referrals, including where an oral hearing is held 8 weeks. The Statutory Objective Period for all other cases, including Compulsory Purchase Orders, Licensing appeals, etc. should remain at 18 weeks.	Ongoing
83	That the Department, in consultation with An Bord Pleanála and the Agency, examines the current legislative framework and takes steps to expand, where appropriate, the range of applications for development consent where the Agency must be consulted formally.	Ongoing
90	When considering departing from a local authority’s development plan, An Bord Pleanála should in the first instance be obliged to consult with the public using an abridged form of public consultation. Should An Bord Pleanála decide to contravene a development plan, a detailed statement of the reasons for the contravention should be published as a matter of course.	Ongoing
93	An Bord Pleanála should be the designated authority for collating and co-ordinating the issuing of all consents and decisions required from all relevant public authorities relating to Strategic Infrastructure Development including monitoring compliance with time limits. This would be similar to the procedures for the permit granting process applicable to Projects of Common Interest and appropriate legislation and procedures would need to be put in place for An Bord Pleanála to fulfil this function.	Ongoing
94	The Review Group considers that a dedicated unit, similar to the UK Planning Inspectorate’s Consents Service Unit, should be established within An Bord Pleanála to facilitate communication with applicants, other consenting bodies, prescribed bodies and local authorities with the goal of improving communication and facilitating interaction.	Ongoing
97	An informal advisory committee(s), representative of stakeholders, should be established to assist An Bord Pleanála in identifying and addressing high-level issues and challenges of common interest, and to act as a conduit for more effective communications between An Bord Pleanála and its stakeholders	TBD

Theme 2 – Role of Board and Appointments

No.	Recommendation	Status
No.	Recommendation	Status
5	Ordinary members of the Board need to engage to a greater extent in governance to ensure effective oversight of the organisation and, where necessary, to be given appropriate further training.	Complete
6	That a formal job specification for ordinary Board members should be made publicly available and should reflect the Review Group’s view that, whilst useful, ordinary members do not need to have prior knowledge of planning and environmental law and policy; the job specification should however make it clear that successful candidates would be prepared to achieve a working knowledge of these matters. A job specification for Board members should also ensure that emphasis on strategic management and governance of the organisation by Board members. A similar formal job specification for the chairperson should also be produced reflecting also the heightened leadership and governance role played by the chairperson. In addition, the Review Group suggests it would be helpful for An Bord Pleanála in consultation with the Department to draw up terms of reference for the roles of chairperson, ordinary member and inspector in the light of the Review Group’s recommendations.	Complete
7	A suitable induction course and other necessary training should be arranged for new ordinary Board members and the chairperson followed as appropriate by continuing training.	Complete
8	The list of prescribed bodies that nominate candidates for appointment by the Minister, as set out in section 106 of the 2000 Act, is outdated and should be reviewed to include representation of society’s wider interests. The system by which prescribed bodies nominate persons for membership of An Bord Pleanála should continue, subject to the following recommendations, but all nominated persons should be subject to a selection process by the Public Appointments Service in a manner broadly consistent with appointments to other public bodies.	Ongoing
9	Two Board members should be recruited through open competition and should be selected for Board membership by the Public Appointments Service in a manner broadly consistent with appointments to other public bodies.	Ongoing
10	To encourage engagement in the appointment process from a wider pool of candidates, the process concerning the selection of Board members should be amended, with a view to greater transparency and public awareness of Board member duties and required qualifications.	Ongoing
11	Consideration should be given to an advisory or more expanded role to the chairperson or deputy chairperson in the recruitment process for all ordinary Board members.	Ongoing
12	Termination of contracts of employment for the Board members should be sequenced to achieve an approximate 20% turnover on an annual basis.	Ongoing
16	Biannual seminars should take place involving inspectors and the Board to disseminate An Bord Pleanála policy and to identify and address consistency issues, clarify approaches and brief on recent and forthcoming policy and legislative changes.	Complete

Theme 3 – Organisational Issues

No.	Recommendation	Status
No.	Recommendation	Status
3	The Review Group is firmly of the view that stronger general managerial oversight and direction of the inspectorate, as described above, at paragraph 3.11, would be wholly beneficial and would not diminish the operational independence of inspectors when making reports and recommendations. In Chapter 4 the Review Group has set out recommendations as to how greater strategic direction can be given by the Board to improve the efficiency and effectiveness of the case management process.	Complete
4	The Executive Management Team, which currently operates on an informal basis, should be formally recognised and allotted specific responsibilities and performance obligations. The Team should also engage formally with the Board on a regular basis. The respective roles of the Executive Management Team and Management Committee should be clarified. Formal links between the inspectorate and the Board should be strengthened.	Ongoing
13	Formal, hierarchical links and lines of reporting, oversight and management from assistant director of planning, to senior planning inspector, to planning inspector, should be strengthened considerably.	Complete
14	Regular and detailed briefing sessions are necessary within and between Area Teams to facilitate consistency and provide regular feedback on team performance.	Complete
15	Within the inspectorate, stronger oversight and management is required to ensure consistency of approach and recommendation, including report style and format, the wording of planning conditions and overall recommendations prior to issuing to the Board.	Complete
17	Having regard to the approach already pursued in local authorities where internal expert reports are secured from different sections of the local authority in question, An Bord Pleanála should retain (consistent with any legal procurement and other requirements) a framework panel of professionals with expertise across all relevant areas. Such resources can then be called upon, when and if required, in a timely manner.	Ongoing
18	A section comprising of environmental and other necessary specialists should be established within An Bord Pleanála to advise inspectors and the Board and to provide necessary technical advice.	Complete
19	The Remote Inspectorate Team would appear to add value from a service perspective and its purpose and position within the overall organisation, including the title of non-Dublin based inspectors, must be re-evaluated in order to ensure through innovative approaches to flexible working the members of the Team are a fully integrated part of the inspectorate.	Complete
20	The current organisational structure of An Bord Pleanála should be reviewed in order to meet expanding challenges and public expectations. In particular, a new dedicated unit should be established under the direct supervision of the chief officer (ultimately reporting through the chief officer to the chairperson and the Board) to lead and drive change initiatives, new centralised communications policies and practices, research facilities and to address the range of additional expertise required to support the needs of the whole organization.	Complete
22	In the event that An Bord Pleanála re-introduces the use of fee-per-case inspectors and the use of consultancies, appropriate mechanisms to ensure the highest standards of quality, integrity and consistency should be put in place; An Bord Pleanála should explore the procedures used elsewhere to secure these aims, such as the use of the fee-per-case Ombudsman employed by the UK Financial Services Ombudsman.	Ongoing
23	A revised workforce plan should be prepared by An Bord Pleanála and agreed with the Department, based on the need for additional expertise and the introduction of modernised structures and systems associated with the PLEAN-IT project. Consideration to be given to ensuring that all remuneration packages not only reflect the levels of technical skill, experience required, and the responsibilities associated with a post, but should also ensure that there are relative differentials among staff to reflect and encourage those with leadership responsibilities. The revised workforce plan should also reflect the Review Group’s recommendation concerning in-house legal counsel and greater legal scrutiny of the reasons for Board decisions, as recommended in Chapter Four.	Complete
24	An Bord Pleanála should continually review the skills base of its inspectors and provide appropriate training and development through the Performance Management Development System to its inspectors, including targeting specific disciplines, which complement the planning discipline.	Complete
25	In view of the reaffirmation of the Performance Management Development System under the Civil Service Renewal Plan, the full potential of the System should be pursued in the mutual interests of the organisation and staff.	Complete
26	The approval of An Bord Pleanála’s annual budget by the Department should include an incentive for the introduction of an agreed and measurable change programme, aimed at improving efficiency and performance.	Complete
29	The Executive Management Team should enhance oversight of financial management within An Bord Pleanála and should provide periodic financial performance reports to the Board as a matter of course.	Complete
65	Whilst An Bord Pleanála should continue to retain external solicitors it should also recruit at least one in-house counsel (barrister or solicitor) of suitable specialist expertise with seven years or more post-qualification experience to advise. In-house counsel should also be able to instruct the external lawyers and the Bar directly both in an advisory capacity and in litigation cases, where appropriate.	Ongoing
81	An Bord Pleanála, the local government sector and other relevant bodies should explore options concerning the secondment of staff; the Review Group considers that there is ample scope to put in place secondment arrangements which would not compromise the overriding requirement for operational independence and impartiality. Such arrangements would also benefit An Bord Pleanála, local authority and other staff in terms of their professional development. In addition, the coordination of specialist planning and related training across public authorities, including An Bord Pleanála, would likely result in efficiencies and valuable opportunities to strengthen links among the staff of the various organisations and provide further opportunities to staff for their professional development.	Ongoing

Theme 4 – Operational Issues

No.	Recommendation	Status
No.	Recommendation	Status
31	An Bord Pleanála should publish and adopt policy guidance on the award of costs in respect of each of the powers it has to award costs, to include in addition to any other principle justifying the award of costs, the principle that where a party has behaved unreasonably leading other parties to suffer unnecessary costs they may be liable to pay that other party’s costs.	Complete
37	An Bord Pleanála should review its powers and practice in order to facilitate greater use of limited agenda oral hearings and informal round-table hearings/meetings by the Board and its inspectors. If necessary, the legislation should be amended to enable necessary powers.	Ongoing
40	The pre-application provisions relating to Strategic Infrastructure Development should be formally broken into a two stage process to facilitate constructive and meaningful pre-application discussions such that (i) Stage one includes the issuing of a Notice from the Board stating whether or not the proposal constitutes a Strategic Infrastructure Development; and, (ii) Stage two commences where the project has been deemed to be Strategic Infrastructure Development and detailed pre-application discussion commences on the procedures to be followed and the considerations which might have a bearing on the Board’s decision in determining the application. In the interests of ensuring certainty statutory timelines should be introduced.	Ongoing
42	The role and purpose of pre-application discussions (Stage two as referred to in Recommendation 40) needs to be clarified and expanded, in the context of the establishment of a Consents Service Unit as per Recommendation 94 of Chapter Five. It is recommended that a ‘contact plan’ is agreed between the applicant and the inspectorate setting out a framework for support, with the aim of helping to improve certainty concerning timescales and the level of inputs required, and to minimise risks to the effective operation of the Strategic Infrastructure Development process.	Ongoing
43	Measures to enforce applicant compliance with the pre-planning requirements at planning application stage, such that relevant consultations and necessary surveys have been undertaken, should be strengthened. Only when such compliance is demonstrated through the preparation of a pre-planning technical compliance report should a Strategic Infrastructure Development application be deemed to be valid and of a certain standard to be a planning application.	Ongoing
45	Board members should from time to time observe the conduct of oral hearings in cases in which they are to have no part in the decision-making process in order to assist the Board in the on-going assessment of the adequacy of the hearing process.	Ongoing
46	An Bord Pleanála should expand its current policy so as to set out the types of factors it generally takes into account when deciding whether an appeal warrants an oral hearing.	Complete
47	Longer notice should be given of hearing dates in order that prior hearing directions can be issued.	Ongoing
48	An Bord Pleanála should publish standard hearing directions on its web site and issue the directions in writing to the parties.	Complete
49	Where the appeal or application is complex or complicated an inspector should be sufficiently trained to be able to issue bespoke directions.	Complete
50	Directions should be issued in all oral hearings addressing, amongst other things, the requirement for the production of Statements of Case, Statements of Common Ground and Statements of Evidence, in accordance with a fixed schedule set by the inspector prior to the commencement of the oral hearing.	Ongoing
51	Inspectors should be given further training in pro-active oral hearing management.	Complete
52	An Bord Pleanála should strengthen guidance on oral hearings.	Complete
53	Care should be given to ensure that if overheads and power point slides etc. are used for the presentation of evidence during hearings they are legible from all parts of the venue at which people are seated.	Complete
54	Greater use should be made of the existing practice of discussing possible planning conditions on a ‘without prejudice’ basis at oral hearings. In the case of oral hearings concerning Strategic Infrastructure Development applications it should be the normal practice.	Complete
55	For hearings of less than three days the Review Group would not generally consider it appropriate for senior staff to attend the hearing in order to provide on-site advice or support to inspectors.	Complete
56	For longer cases (more than three days) and/or where there is likely to be a large public presence where administrative support is required it should be in the form of an administrative officer performing the role of a liaison officer between the inspector and the parties and the public and helping to ensure that parties know when to attend the hearing. That person should ideally be generally available (perhaps in a side room or at the back of the hearing venue but not seated next to the inspector).	Complete
58	Subject to seeking appropriate legal advice, before booking a private venue, opportunities should be explored to see if local authority or other public sector offices can be used for oral hearings.	Ongoing
59	All inspectors should be required to follow the template format in drafting their reports	Complete
60	Cases should be presented to Board members by inspectors or suitably qualified staff members. If necessary, the legislation should be amended to provide expressly for this	Complete
61	The Board must make clear in its direction, by reference to paragraph numbers, those parts of the inspector’s report with which it agrees and those parts where it disagrees. Where the Board disagrees, it should give its reasons for so doing supported, if necessary, by relevant evidence. The reasons should not be formulaic	Ongoing
62	Inspectors when reporting should follow An Bord Pleanála guidance on the imposition of planning conditions and in exceptional cases give clear planning reasons for any departure from An Bord Pleanála guidance.	Ongoing
63	An Bord Pleanála should publish a guidance document containing its general view on good practice to be applied when drafting bespoke conditions and also setting a national template for conditions in consultation with the local government sector, as per Recommendation 80 of Chapter Five.	Ongoing
64	Generally, and certainly in the case of all Strategic Infrastructure Development applications, an inspector should draft on a ‘without prejudice’ basis a list of conditions which they would recommend to the Board if the Board decided to grant planning permission against the inspector’s principal recommendation.	Ongoing
68	A validation stage should be introduced to raise the standard and quality of Strategic Infrastructure Development applications generally and to ensure that the pre-consultation stage has been used to full effect. The technical report referred to at paragraph 4.32 (see recommendation 43) and which will demonstrate compliance with pre-application technical requirements and necessary consultations raised should be a significant influencing factor on whether a Strategic Infrastructure Development application is of an appropriate standard.	Ongoing
69	In the interest of consistency and timeliness, the senior reporting inspector on Strategic Infrastructure Development cases should be involved from the outset in the determination of the case, including attendance at pre-consultation meetings and meetings associated with prescribed bodies. Team meetings with the Board can be facilitated by the director of planning and/or the assistant director of planning and necessary information disseminated to the reporting inspector as necessary.	Ongoing
91	An Bord Pleanála should be required to accompany the notification of decision to the relevant planning authority with a full set of plans and particulars in order to facilitate any compliance processing and enforcement undertakings that may arise in a particular case.	Ongoing

Theme 5 – Communications

No.	Recommendation	Status
No.	Recommendation	Status
30	An Bord Pleanála should produce a suite of guidance documents covering the principal areas of its decision-making processes.	Complete
33	An Bord Pleanála should publish and update as necessary its policy on the types of cases which will be ‘priority cases’.	Ongoing
34	An Bord Pleanála should make public whether a particular case is a ‘priority case’	Ongoing
35	An Bord Pleanála should publish guidance on the general approach to be adopted by the Board and inspectors in the exercise of their power to facilitate the provisions of Section 132 of the Planning and Development Act 2000 to require further information.	Ongoing
57	As part of the improvement of An Bord Pleanála’s website, the possibility should be considered as to whether daily updates of oral hearing timetables can be posted and accessed by the public.	Complete
71	In the consideration and determination of Strategic Infrastructure Development applications, communication with Local Authorities should be reviewed and enhanced. A Memorandum of Understanding should be developed between An Bord Pleanála and the County and City Management Association to enhance the communication network and pattern.	Ongoing
74	An Bord Pleanála should publish a week-by-week processing and drafting timeframe for the different categories of cases it determines.	Ongoing
77	An Bord Pleanála should agree Memoranda of Understanding with other relevant consent, consultation and prescribed bodies, including with the local government sector.	Ongoing
78	All Memoranda of Understanding agreed by An Bord Pleanála should be published online.	Complete
79	A timetable should be set by An Bord Pleanála for the agreement of Memoranda of Understanding. Memoranda of Understanding should also identify policies and practices which would benefit from the publication of joint guidance documents, a matter which is discussed further below. All Memoranda agreed by An Bord Pleanála with other organisations should be jointly reviewed, as appropriate but within a three-year period and revised as necessary to address issues where they arise.	Ongoing
80	An Bord Pleanála should as a matter of priority agree a publication sequence of detailed guidance documents regarding specific topics, based on an analysis of stakeholder needs, including the development of a national template for conditions as per Recommendation 63 of Chapter Four, and in addition should pursue opportunities for the issuing of joint guidance as per Recommendation 79.	Ongoing
82	Building on the arrangements already in place, contact between senior management of the Department and An Bord Pleanála should be formalised; an annual meeting between the Department’s Secretary General, the Assistant Secretary overseeing the planning function, and the chairperson of the Board should take place to provide a forum to discuss matters including: resourcing, performance fees legislation, MOUS, joint guidance and progress on implementation of review.	Complete
84

Question No. 388 answered with Question No. 362.