The past year has seen a string of allegations of conflicts of interest within An Bord Pleanála (ABP) that have rocked public confidence in the Irish planning system. The recent guilty pleas for failure to declare property interests by former ABP deputy chair Paul Hyde may seem like the fatal blow; and with a bulging backlog of undetermined planning decisions and a judicial review loss rate before the High Court that would guarantee the sacking of any Premier League football manager, things at ABP may indeed look fundamentally broken.
But what to do? In 2015, I was appointed by Alan Kelly TD, the minister then responsible for planning, to chair the independent organisational review of ABP that reported in March 2016. In so doing, I had the privilege of leading an outstanding group of experts: Prof Áine Ryall, School of Law, University College Cork (Vice-Chair), Michael Malone, former County Manager, Kildare County Council and Mary Hughes, the then President of the Irish Planning Institute.
In the foreword, I was able to say without any fear of serious challenge that “An Bord Pleanála enjoys a well-deserved high reputation for its integrity and professionalism”. Sadly, not any more.
Our unanimous recommendations for improvements in the system of appointments to the Board, and to the decision-making process of ABP, were welcomed without reservation, by both the Minister, and the then chair of ABP, Dr Mary Kelly. But crucially, following national elections, implementation of those recommendations was tardy. Important recommendations which might have helped prevent or mitigate the current situation still remain unimplemented.
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The current government’s answer now is the Draft Planning and Development Bill 2022 and a renaming of ABP to An Coimisiún Pleanála (ACP). The Bill’s attempt to consolidate Ireland’s notoriously inaccessible and disparate planning laws is to be welcomed, and was one of our recommendations back in 2016.
However, the Bill’s effort to reduce judicial reviews of ABP decisions by limiting the ability of groups of citizens to bring a judicial review, and restricting legal costs protection for challengers in the Irish courts, may well result in more legal action. And not only in Ireland, but also before the Court of Justice of the European Union and the United Nations’ Aarhus Convention Compliance Committee, which seeks to secure compliance with the international treaty on access to environmental justice to which both Ireland and the EU are parties.
Such challenges would bring delay and cost to the planning system. In any event, if an ABP decision is unlawful, in my view, every citizen in this country should have the right to have legal redress before the Irish courts. As I write in the foreword to our report: “The way in which planning decisions are taken also involves striking a balance between many factors. Some of these factors pull in different directions. We want planning decisions to be taken by people of integrity. We want decisions-takers to have fully considered the evidence and for their decisions to be soundly and carefully reasoned. We want everyone to have had a fair say. And we want the decision to be delivered without undue delay and too much cost!”
I believe this can be done. Here are the three steps that would ensure quick progress to that aim – which the Government has agreed to consider.
1: Appointment of High Court Judge to Chair ACP
ABP was set up in 1977 to overcome public mistrust in the political nature of the Irish planning system. It was a requirement of the Local Government (Planning and Development) Act 1976 that the chair of ABP must be a High Court judge or a former member of the judiciary. The opportunity currently exists to return to that model with a High Court judge as chair of the new ACP – if only for an initial period of three years.
This would immediately help restore public confidence. It would inevitably improve the culture and quality of decision-making, thereby reducing the number of successful judicial reviews. The judge could help to bed in a high-quality, in-house legal service. As a result, there would be a reduction in the delay in the decision-making process and associated costs.
2: Delegate Routine Planning Decisions to the Inspectors
During our review in 2015, we watched board members huddled together in a room in Dublin scaling off plans for minor back house extensions in Donegal. We were not the first to see this; previous ABP review groups had in fact recommended delegation of minor cases to suitable inspectors as far back as 2003. Unlike an inspector, board members won’t have been to the site.
Across the water in England and Wales, something like 95 per cent of planning appeal decisions are delegated to inspectors and a similar figure applies for the equivalent “reporters” in Scotland. The decision-making where the inspector makes the decision is far quicker by cutting out a stage – but even writing a decision rather than a recommendation is much shorter. A trial period of delegation either regionally or across the country, for small-scale development proposals would help cut the backlog and free up board members for the bigger cases.
3: Invest in a high-quality, in-house legal service
The poor quality of ABP reasoning has long been a source of complaint. With EU environmental law and law about climate change, many planning decisions are just legally more complex. We were not the first to recommend high-quality internal legal advice. Funding difficulties were always claimed to be an impediment for being able to pay for suitable senior lawyers. That argument is not now credible, if it ever was, with ABP admitting that in 2022, €9.6 million was spent on judicial review costs. With a state budget anticipated to be in surplus to the tune of around €10 billion this year and €16 billion in 2024, lack of resources cannot be a sensible reason.
Implementing these three steps should go a long way to ensuring that Ireland’s planning system is, in fact, “enabling common sense to be organised”, as was originally envisaged by Manning Robertson, the great pioneer town planner and Carlow native.
Gregory Jones KC, BL is a dual qualified barrister practising in planning and environmental law from the Temple, London and the Law Library, Dublin. In 2015, he was appointed by Alan Kelly TD, the Minister then responsible for planning, to chair the independent organisational review of ABP that reported in March 2016