An Bord Pleanála: Fallout of controversy adds to housing crisis woes

First the controversy. Now the fallout. After the July departure of former An Bord Pleanála deputy chairman Paul Hyde, the planning authority has conceded High Court cases against three fast-track housing schemes linked to his work. The cases involve projects in which permission was sought for more than 1,400 new homes in south Dublin.

These are but the latest successful challenges to permissions granted under strategic housing development (SHD) laws that were supposed to free up the construction of badly needed homes as the housing crisis escalated. It didn’t quite work out that way.

Before the High Court on Monday were two cases linked to Mr Hyde that ABP conceded: big apartment projects in Killiney and Blackrock in south Dublin. ABP has also conceded a separate case against fast-track permission for another apartment scheme in Milltown. On grounds not linked to the Hyde affair, the planning authority also conceded a challenge against a project in Clane, Co Kildare.

ABP said the Killiney, Blackrock and Milltown moves were made in response to “amended” legal claims against permission it granted with appellants saying “the involvement of a board member in the decision-making in the cases raised questions of objective bias due to a familial connection between that board member and a person involved in the planning application process”.

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This is a clear reference to Mr Hyde, who was chairman of the ABP division in charge of fast-track SHD approvals for large-scale housing projects. He always denied any wrongdoing in relation to any of the claims made against him before his resignation from ABP three months ago.

Personal declarations

When controversy arose in the spring over Mr Hyde’s personal declarations to ABP, questions were soon raised about planning cases before the authority in which his brother Stefan Hyde, a fire-safety expert, had an involvement. These included some cases in which Stefan Hyde was a consultant for ABP itself and others in which fast-track housing applications were submitted with documentation from Stefan Hyde.

Paul Hyde separately faces action in Dublin District Court after the Director of Public Prosecutions moved to instigate a criminal prosecution on foot of a Garda investigation into claims of impropriety in his conduct at ABP. In those proceedings, he faces charges under the Planning and Development Act in relation to allegations he gave false particulars to ABP.

The DPP’s move was formally notified on Monday to the Department of Housing. Asked whether the Killiney, Blackrock and Milltown decisions were linked to matters before prosecutors, An Bord Pleanála said: “The decision on the concessions was made last week and was not related in any shape or form to the process before the DPP.”

Taken together with the Clane concession, the decision in the three south Dublin cases means the approval for some 1,752 housing units is now set to be quashed. With no easing in the housing crisis, these cases serve to underline problems with the SHD legislation that were apparent long before controversy erupted over Mr Hyde.

Legal cases

By cutting local authorities from the approval process and leaving no avenue for appeal short of judicial review proceedings in the High Court, the aim was to speed up housing delivery.

But the law fanned an exponential rise in legal cases against decisions handed down by ABP in the last three years. SHD approvals were at the centre of 32 of the 83 legal actions against An Bord Pleanála in 2020; 47 of the 95 actions it faced in 2021; and 18 of the 45 it faced in the first half of this year. Among all 83 judicial review applications against ABP decisions in 2020, 32 were lost or conceded. In 2021, 40 of the 95 applications it received were lost or conceded.

The cascade of costly legal claims led the Government to advance laws to replace SHDs in which applications for large-scale developments go first to local authorities with the possibility of an appeal later to An Bord Pleanála.

But the overhang of extant SHD cases is still within the planning and courts systems. This has led to inevitable complaints in development circles about long legal planning delays and a lack of certainty over the outcome of applications.

With surging inflation adding to already-high building costs, difficulties in the planning system are but one aspect of a dysfunctional housing and property market. But it is still a rather important one. Although political moves are in train to overhaul ABP, it is likely to be long process. The wait for new homes goes on.