An Bord Pleanála at Public Accounts Committee

An Bord Pleanála at Public Accounts Committee

Public Accounts Committee, 27th April 2023

Full Transcript

Deputy Marc Ó Cathasaigh: I welcome the witnesses and thank Ms Buckley and Mr. McCarthy for their opening statements. I do not presume to speak for everybody here but we all
share the same wish, which is to have a planning system that works and makes fair and robust
decisions in a timely manner. We all share that goal but, clearly, it has not been the case in recent years, as set out in the documents before us.
I welcome Ms Buckley to her new role. I do not envy her the task that is before her. She
has a major rebuilding job ahead. I am glad the new board members are now in place, at least
on an interim basis, and will, starting from May, be making decisions on files. Ms Buckley
will have a huge challenge in recruiting the necessary numbers of supporting staff, especially in
light of the new functions that are now assigned to the board. I suspect the greatest challenge
she will face is around rebuilding public trust in a planning system that, in many people’s eyes,
is broken. She said in her opening statement that certain events “have had a serious detrimental
impact on the board’s reputation”. Some of her commentary recently at the Irish Planning Institute, IPI, conference was not helpful in this regard, but I do not intend to dwell on that here.
Suffice to say that robust decision-making in the first place is likely to reduce the incidence of
legal challenge.
On the need to remediate the public opinion of An Bord Pleanála, the first question I ask
Ms Buckley is whether the organisation should consider making a corporate public apology. I
am not suggesting a personal apology in any way, shape or form. Ms Buckley bears none of
the responsibility for actions that were taken before she took up her role. Would a corporate
public apology be appropriate for an organisation that has so damaged public trust in our planning system?
Ms Oonagh Buckley: The Deputy has asked an extremely good question. One of the first
things I did when I arrived at the board was to approve an apology, to be put on our website, to
people whose appeals and applications were held up by the difficulties in An Bord Pleanála. I
am very happy to repeat that apology to those persons who, through absolutely no fault of their
own, have had their household developments held up because of the difficulties within An Bord
Pleanála. I extend that apology to the staff of the board because they, through no fault of their
own, have had to deal with a lot of very difficult discussions with members of the public about
what was going on in An Bord Pleanála. That statement was also aimed at making sure the staff
had something they could say that was fair to them.
I did consider making a corporate apology. As the Deputy says, I was not on the board at the
time, so it would not be a personal apology. I am happy to do so. However, An Bord Pleanála,
as an organisation, has already apologised to the people whose applications and appeals have
been held up. I am happy to repeat that today. It is most unfortunate.
The Deputy mentioned the IPI conference. I am very sorry that I became the story there.
That should not have been the case. I am very sorry I name-checked somebody who was not in
the room to answer those questions. I should not have done that. I have to learn a lesson from
this. The first part is not to name-check people and, second, I have to understand in future that,
in this role, people are interested in everything I say and I should write a script and stick to that
script. That is my learning from what happened at the conference and I am very happy to say I
will not be doing that in future.
Deputy Marc Ó Cathasaigh: I welcome those specific apologies and I understand the case
for them. Ms Buckley should give consideration to a corporate apology, to which she indicated
she is open. It is not just about individual planning applications. The entire public trust in our
planning system has been undermined. If she is open to considering a corporate public apology,
it would be welcome.
Staying with the issue of rebuilding trust, a central component of that must be transparency.
As the adage goes, the best disinfectant is sunlight. In her opening statement, Ms Buckley
indicated that she has asked Lorna Lynch SC to carry out a scoping investigation and prepare
a report. She further states that she has asked that the final report should be “capable of being
published”, but there are caveats attached to that. There is a bit of a ring of “Father Ted” to this,
with the question “Is there anything to be said for another mass?” coming to mind. We have
had numerous reports, at least two of which have never seen the light of day. The Minister for
Housing, Local Government and Heritage commissioned an independent analysis around alleged conflicts of interest. That has been forward to the Director of Public Prosecutions, DPP,
for which I get the rationale. I understand there was also an internal report from senior management. In addition, a third report was carried out by Resolve Ireland, which apparently found
that An Bord Pleanála’s director of planning has no case to answer. I say “apparently” but, in
fact, it is not apparent because the report was never published. I assume that report was paid for
out of the public purse. If the money is followed back, it is the taxpayer who footed the bill for
it. Why was it never published? Does Ms Buckley see how the burying of successive reports
does nothing to rebuild public trust?

Regarding the report commissioned by the Minister, has the board had sight of it and, if so,
has Ms Buckley implemented any of its recommendations in the interim?
Ms Oonagh Buckley: Generally speaking, when dealing with matters of HR, particularly
investigations that can lead to disciplinary or other outcomes, to be fair to the person who is
involved in that case, one has to be extremely careful about how one conducts investigations
and what one publishes about them. At least one of the reports the Deputy referred to was an
HR investigation and it would be most unusual to have such a report published. I do not know
that I am aware of it ever happening. Indeed, if an investigation happened into any conduct of
mine, I would not want the report, even if it—–
Deputy Marc Ó Cathasaigh: Is Ms Buckley referring to the internal senior management
report as opposed to the Resolve Ireland report?
Ms Oonagh Buckley: One of the internal reports to which the Deputy referred was into
an individual in the organisation. The other report is one that was conducted on a paper-based
exercise by colleagues in An Bord Pleanála. I received legal advice that neither the board nor I
should publish it. That report was always intended as the first stage in a process. I have started
the second stage of the process, which is to conduct an external investigation comprising the
same role but involving interviews with people. If there are issues raised from the papers,
those issues will be put to the individuals in question and they will be allowed an opportunity
to respond.
On foot of that, I expect to get recommendations from Ms Lynch as to possible next steps
that might be taken. There may be none. There may just be recommendations about how to
improve the processes in An Bord Pleanála. If that is the outcome, I will be able to publish
the report straight away. However, if, on foot of her investigation, Ms Lynch recommends that
further steps be taken, whether disciplinary steps, referral to the Minister in the case of a serving
board member or referral to another external authority, I will have to do that. In those circumstances, it could cause problems for the subsequent investigation and process if the report were
to be published at that stage. I do not have any problem publishing any report as long as my
legal advice is that I can publish, in which case I will do so.
The Deputy referred to a ministerial report. There was a ministerial action plan that has
been published. Is he talking about the Remy Farrell investigation?
Deputy Marc Ó Cathasaigh: Yes.
Ms Oonagh Buckley: That is not my document.
Deputy Marc Ó Cathasaigh: Has the board had sight of it?
Ms Oonagh Buckley: I personally have had sight of it. It was given to me in order that I
would understand the circumstances I was going into.
Deputy Marc Ó Cathasaigh: Has the board had sight of it?
Ms Oonagh Buckley: No. I have read it but no other person in An Bord Pleanála has seen
Deputy Marc Ó Cathasaigh: If there are recommendations contained within that report, it
is fair to say then that the board, as it has not had sight of the report, cannot have implemented
any such recommendations contained therein.

Ms Oonagh Buckley: That is correct.
Deputy Marc Ó Cathasaigh: Can Ms Buckley see how the public might cast a jaundiced
eye on yet another report, which will the fourth one to be commissioned, given they presumably
have all been paid for out of the public purse? Even members of this committee have not had
sight of those reports.
Ms Oonagh Buckley: The circumstances were that I had legal advice that I could not publish the internal report. I was concerned that the point might be made that I had a report and did
nothing with it. I have taken this next step and that is a very important next step.
Deputy Marc Ó Cathasaigh: I have an eye on the clock and there are many questions I
want to get to. The Office of the Planning Regulator report on phase 1 states how more recently,
“An Bord Pleanála has faced high levels of successful legal challenges to its decisions and associated costs – approximately €8m, or 45% of its budget, in 2021.” It is a very substantial proportion of any body’s budget to be going out on legal fees. According to the 2022 figures, An
Bord Pleanála won nine cases, lost nine and then conceded 35 of them. In that kind of context,
I find it difficult to credit that a head of legal services is only being put in place now. We can
talk about costs being awarded to third parties but the fact is that the State has outsourced much
of its own costs in taking legal advice on board. Can Ms Buckley give us a breakdown of the
€7.6 million spent on legal costs? My assumption is that most of them refer to strategic housing developments, SHDs, but she might correct me if I am wrong on that. How many of them
refer to normal planning applications, strategic infrastructure developments, SIDs, large-scale
residential developments, LRD, etc.? Can Ms Buckley give any insight into the breakdown?
Ms Oonagh Buckley: I can. I share the Deputy’s view. The litigation environment in
which the board is operating now is fundamentally different to that of years ago, but the board
itself did not adapt to this new external legal environment. It is only adapting now. As the
Deputy knows, I put in place the recruitment of a head of legal services and we will recruit more
internal legal resources. I find it very strange. That being said, one of the points I was trying
to make last week is that SHD has driven only part of that very substantial layer of losing and
conceding cases. Conceding cases is obviously the really big issue there. Why are decisions
being taken that we cannot stand over when they are challenged? In fact, to take last year as an
example, we conceded 35 cases but 16 of them were on normal planning appeals, three were
on SIDs and five were labelled “Other” where we had compulsory purchase orders, CPOs, and
what have you. Only 11, that is, approximately one third of them, were SHDs. The point I
was very much trying to make last week is that there is kind of a belief in planning circles, in
particular, that once SHD decisions have gone through the system, this will all be all right and
judicial reviews will fall back to one per week as opposed to two or three or whatever. I do not
believe that to be the case. The board has to adapt. It has to bring in additional legal resources
internally. In my discussions with our external legal firms, which ably represent us, they are
very relieved that the board is moving to strengthen its internal core around being able to take
robust decisions.
Deputy Marc Ó Cathasaigh: I thank Ms Buckley; I am sorry to cut her short. I know
other members will dig down into these costs. There is another aspect I wish to briefly explore,
She referred to the context for making these decisions changing all the time. I want to refer
to some of the environmental context. Traditionally, the Irish planning system and, therefore,
the board enjoyed quite a wide discretion when asked to judge against quite flexible standards.

That could be seen as quite subjective. Subsequent EU legislation, in particular, and Irish legislation have introduced much more objective tests, for example, the obligations under the habitats and birds directives, the water framework directive and more recently, of course, obligations under the Climate Action and Low Carbon Development (Amendment) Act 2021. These
all have strong and clear tests, which are aimed respectively at biodiversity loss, water quality
and around emissions. The board has repeatedly found itself losing cases under the birds and
habitats directives, which are the oldest of these legal regimes. A high-profile decision made
recently with respect to the Galway ring road referred to the new climate Act. This is only
going one way. Ms Buckley in her opening statement acknowledged those extra responsibilities the board will have to shoulder under the likes of the Maritime Area Planning Act 2021 in
particular. How is it proposed to address this? I assume she will say massive extra resources
are needed. Does she have the plans in place to recruit not just the bodies but the expertise in
terms of the resources we need?
Ms Oonagh Buckley: The Deputy is quite correct. The level of complexity in the planning
and environmental system is of an order that is different from what it was. I used to be involved
in this area 15 or 16 years ago, which is probably why I was invited back to do this role temporarily. The level of complexity involved is streets ahead of where it was even 15 years ago. To
a degree, we need resources, yes, and we need expertise. I have a substantial sanctioned rate
of pulling people in but I will probably be going back to the Department in due course to say,
in fact, we need extra ecologists and we need those skills. We do much recruitment of external
expertise because quite often, say, on the marine side, those skill sets are not available in Ireland
or where they are available, they have already been used and are involved in the private sector
in preparing its applications and, therefore, we cannot use them because there are conflicts or
other public bodies are desperately trying to recruit them. Those are some of the issues. We
tend to have to pull in expertise from across Europe. That is what we are looking at there.
It will be a challenge to keep ahead of all those, particularly under the current Government
given its focus on these matters. The focus I have, and one of the cultural shifts we need to
make as we move into being An Coimisiún Pleanála, will be a focus on a learning environment
and a constantly evolving learning body so that the people who we bring in keep pace with
those developments and keep learning. That is going to have to be a big investment in the new
staff we have and, indeed, in the board members because the board members need to be kept up
to speed with these developments as well.