Damien English’s planning error cost him his job but why has the council taken no action?

Damien English’s ministerial career crashed to a halt in January because of grave failings in the planning application for his home in rural Co Meath. Almost two months later, there is no evidence the local authority is going to do anything to hold him to account for the false information that helped him gain planning approval.

The case is a sensitive one for Meath County Council, not least because the Fine Gael TD was a councillor himself before his 2002 election to the Dáil and for two years after. He went on to hold junior ministries in the department responsible for planning before becoming minister of state for employment.

The issues raised about English’s planning application were serious enough to prompt his resignation within hours of The Ditch website running a story on him. But Meath council refuses to say anything of substance about its response to the disclosures, if it has any. The question is every bit as salient for people who comply rigorously with the planning code in applications to the council – as it is for anyone else who, like English until a couple of months ago, made successful submissions grounded in false information and were not found out.

Even if it had the will to tackle English over his 2008 application, the council’s options appear to be limited.

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Why Damien English resigned over planning permission for his home

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Rural planning rules now ‘more stringent’ than in years past

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The Irish Times view on the resignation of Damien English

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According to the Office of the Planning Regulator, there is no mechanism to reopen a planning case once permission has been granted and the appeal period elapses. “Generally speaking, under current planning legislation, which is being reviewed at present by Government, there are no specific offences or penalties in place relating to the submission of declarations in a planning application which subsequently turn out to be false or misleading after a decision has been made on the application,” the regulator’s office said, emphasising that its remit does not include reviewing individual decisions made by planning authorities.

“There may be scope to consider the submission of inaccurate information as part of a planning application as an offence under the ongoing review of the planning act in order to act as a stronger deterrent against such practices.”

The regulator’s office has no data on any council ever taking action against a successful planning applicant who acknowledged submitting incorrect information after building the home in question.

Whatever its intentions in relation to English, Meath County Council is steadfast in its refusal to discuss disclosures about the former minister.

Enforcement responsibility

Equally unclear is whether the council has taken any action internally to assess its scrutiny of his application 15 years ago, a matter under its own jurisdiction. Given apparent flaws in the examination of the English file, it is also unclear whether the council might seek to determine whether other similarly misleading applications made it through the system.

Is that good enough? A national politician with a big local profile gained personally after breaching legal procedures binding on all planning applicants. Like local authorities elsewhere, the council’s responsibility for planning in Meath includes enforcement. In question now is whether the council will – or can – do anything about the English case.

This is critical for the public standing of the local authority in Meath, which must, like all other councils, be seen to apply planning rules properly in all cases. In a rising property market, the proximity of Meath to Dublin means planning decisions in the county can confer significant financial advantage on successful applicants or dash their hopes. When the system breaks down for whatever reason, an explanation is required.

[ Why Damien English resigned over planning permission ]

[ The Irish Times view on resignation of Damien English ]

Planning permission can be revoked under current laws in certain circumstances, but only on very narrow grounds that don’t seem to relate directly to the English case. This can be done, according to the regulator, if a development plan changes after permission is granted where the activation of permission might impede delivery of the plan’s objectives. The mechanism is used only infrequently in cases such as big road projects.

English was aged 30 in 2008 but already well-established in politics when he made the fateful planning application. Although Fine Gael was still in Opposition, he had been the youngest member of the Dáil when elected first and was very well-known in the county. He did not reply to phone messages seeking comment for this article or to emailed questions.

The TD owned a house in Castlemartin yet failed to declare it when he successfully sought permission to build a bungalow at Cookstown, a rural area outside Kells. The planning application incorrectly said he “does not own a dwelling and has not owned a dwelling previously”. The mistruth appears to have gone through unnoticed and unchallenged.

This was a material failing in the application, because the county development plan of the time made particular provision for local non-farmers seeking to build rural housing. The criterion in question specified people “who do not possess a dwelling or who have not possessed a dwelling in the past, in which they have resided or who possess a dwelling in which they do not currently reside”.

Despite the misleading statement, planning permission was granted and the house was built. English became a junior minister in 2014, three years after Fine Gael’s return to power. When The Ditch website reported failings in his planning application, he quit his ministry that very night and made public his departure at breakfast time the next morning.

“This was wrong, not up to the standard required and I apologise for doing so,” English said of the inaccuracies in his application.

‘Not tenable’

Taoiseach Leo Varadkar concurred: “It was his view given the circumstances that his position was not tenable. I agreed and accepted his resignation.”

Although English paid the price in political terms, the question of any price being paid in planning terms is a separate matter.

The Irish Times sought answers in January from Meath County Council asking, among other questions, whether it had initiated any action to examine or investigate the disclosures English made in his statement.

The council was asked about the planning status of any home built on the strength of permission granted to applicants who acknowledge submitting incorrect information. Also in question was whether there was any procedure to reopen a planning case in such circumstances and whether any penalties could be levied against those who flout the rules.

The council replied with what it described as a “full statement” but one which failed to address any specific questions in a meaningful way.

“Once a final grant of planning permission is issued, the role of the planning authority is to ensure compliance with the conditions of the planning permission,” the council said. “It has been and continues to be the policy of the council not to comment on any aspect of individual planning applications.”

There was no reply to further queries, including the question of whether the council was saying the TD’s planning permission stands despite manifest failings in his application that had now come to light. The council simply repeated its policy of not commenting on specific applications and did not respond to procedural questions.

There was a similarly vague response to February questions submitted directly to Jackie Maguire, chief executive of Meath County Council. “The council has answered your previous queries, in so far as it can,” said a press officer.

Procedural questions

“It is not possible to provide a generic response to the questions you have posed as any such matters would be assessed on their own individual merits based on information presented to the council and any further advice that the council may seek with respect to the matter.”

Questions were then sent to planning regulator Niall Cussen, whose office was established four years ago on foot of Mahon tribunal recommendations.

The office does not have powers to review decisions to grant or refuse planning permission or enforcement matters and did not comment on the English case. But it did reply to procedural questions, citing “local need” forms such those featuring in the English case which applicants for rural housing are required to complete.

“Local authorities take the contents of local needs forms on good faith as one of the factors in determining the planning application,” the regulator’s office said.

“Local authorities will typically endeavour to ensure that in their assessment of such applications, they have been presented with a truthful set of facts. It is up to the local authority to use its own resources to identify any concerns it may have regarding the veracity of the planning application information at the time of determining that application.”

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Whatever efforts were made by Meath County Council in the English case remain unclear. Still, the regulator noted “legal, regulatory and practical parameters” to be considered in relation to “the degree to which additional or verifying personal data and information can be sought” to confirm facts in a particular case.

“Historically, there have been suggestions that applications seeking planning permission for rural housing, may lodge inaccurate or incomplete information as part of planning application in order to positively advantage the determination of such applications.

“However, there is little data as to the degree to which this may be the case and gathering such information, particularly in relation to completed development, would be challenging.”

‘Publicly available’

Still, the regulator said councils were encouraged under official guidelines to track rural development patterns to ensure sustainable development.

“It is also worth noting that planning applications are publicly available for anyone to access. In practical terms, this tends to act as a significant disincentive to the submission of any inaccurate or incomplete information.”

Despite English’s public role, that disincentive did nothing to stop critical inaccuracies in his planning application.