Mick Clifford: Probe shows that creeping politicisation damaged trust in An Bord Pleanála

Mick Clifford: Probe shows that creeping politicisation damaged trust in An Bord Pleanála

Allegations about An Bord Pleanála have been tumbling out ever since The Ditch website reported on circumstances around the refusal of planning for a proposed development in Blackpool, Cork.

On July 8, there was a sigh of relief in some quarters when Paul Hyde resigned. The deputy chair of An Bord Pleanála wrote to Housing Minister Darragh O’Brien tendering his resignation. He has been under pressure for three months, with a drip feed of revelations emerging from the planning board about malpractice and misgovernance.

It had all begun with the Cork-born architect’s alleged conflicts of interest. The Ditch website reported on a decision by Mr Hyde concerning a proposed development in Blackpool, Cork City, in which he failed to declare an interest in a company that owned lands nearby. Thereafter, the allegations began tumbling out at a rate of knots, and many of them had Mr Hyde as the central figure.

So for those in An Bord Pleanála, in Mr O’Brien’s department, and probably in the wider planning ecosystem, there was understandable relief when Mr Hyde bowed to the inevitable.

Now that the wound had been excised, everybody could get back to normal.

Senior lecturer at Technological University Dublin Lorcan Sirr says: 'What it looks like is there has been increased politicisation of the board or else somebody has been asleep at the wheel.' File picture
Senior lecturer at Technological University Dublin Lorcan Sirr says: 'What it looks like is there has been increased politicisation of the board or else somebody has been asleep at the wheel.' File picture

Last month, Mr O’Brien brought things further along with the publication of a blueprint for the operation of An Bord Pleanála going forward. Then the past came back with a jolt.   

Litany of failures

On Monday, the Irish Examiner published details from an internal report that was commissioned last May at the height of the Hyde controversy. The report, entitled ‘Examination of Certain Matters’, is a devastating indictment of a culture that has evolved in the board in recent years.

The report was compiled by three senior figures in the organisation: Chief officer Bríd Hill, director of corporate affairs Gerard Egan, and head of human resources Mary Kelly.

They examined 300 files that had been generated between 2018 and 2022. Their comprehensive work is in danger of giving a good name to that most discredited of investigations, the internal inquiry. The report lists a litany of failures that have had a major impact on the workings of one of the most important bodies in national planning. 

The authors found that there may have been “a concerted attempt to shift certain cultural norms in An Bord Pleanála away from those which have been in place, monitored and guarded by multiple past and present board members and staff”.

Such a scenario is extremely serious. But, apart from Mr Hyde, who else might have questions to answer within An Bord Pleanála? 

No names are mentioned in the internal report. However, it was commissioned in response to a series of media reports — principally in The Ditch and the  Irish Examiner — about issues that had arisen. To that extent, it is relatively easy to match individuals within the board to the criticisms in the internal report.

Potential conflicts of interest

A major theme in the report is conflicts of interest. In that vein, the report references a suggestion that “a person involved as part of an applicant team in a number of cases may be well known to a member of staff who had a role in the processing of such cases”.

Rachel Kenny is the 'senior official' identified by An Bord Pleanála chairman Dave Walsh in respect of an examination of potential conflicts of interest. Mr Walsh stated on Friday that Ms Kenny “didn’t have a case to answer”. File picture
Rachel Kenny is the 'senior official' identified by An Bord Pleanála chairman Dave Walsh in respect of an examination of potential conflicts of interest. Mr Walsh stated on Friday that Ms Kenny “didn’t have a case to answer”. File picture

It goes on to state that the two individuals both attended a planning meeting. It states that a separate process has been commissioned to look at these allegations.

The Irish Examiner reported on this last Tuesday. Yesterday, An Bord Pleanála chairman Dave Walsh issued a statement identifying a “senior official” in this respect, whom, it can be confirmed, is the director of planning, Rachel Kenny. 

She attended a pre-planning meeting on October 19, 2020, which was also attended by her husband, Dan Egan, of The Big Space Landscape Architects, which was part of the applicant for a major housing development. Both also had roles in other aspects of that application.

Mr Walsh commissioned a dispute-resolution firm, Resolve Ireland, to investigate.

It concluded, according to yesterday’s statement, that “the issues raised had been the subject of materially inaccurate media reports and that there was no case to answer”. Ms Kenny “didn’t have a case to answer”.

It attributed the allegation to “inaccurate reporting”.

The reporting from The Ditch was, to the greatest extent, based on documents on file in An Bord Pleanála and publicly accessible.

The route of resolution taken by Mr Walsh was in contrast to that which was taken in dealing with the case of Mr Hyde. A senior counsel investigated the latter in a probe that was publicly known. A HR firm investigated Ms Kenny and its existence was largely unknown — even to most staff of An Bord Pleanála — until published in this newspaper last Tuesday.

Questions submitted to An Bord Pleanála yesterday about the terms of reference of the inquiry into Ms Kenny, the board’s relationship, if any, with Resolve Ireland, and what exactly was reported inaccurately, had not been answered by last night.

External presentations

Another issue outlined in the internal report is presentations to outside bodies by staff or board members. Impartiality is a vital element of the board’s work. Developers or builders of any sort, along with members of the public who might object, must believe that all rulings are delivered in the fairest way possible.

Yet the report states that presentations made by staff members “raise concerns” in this respect.

“External presentations should not call into question, or risk being interpreted from a reasonable person’s perspective, as calling into question the bona fides of participants in the planning process or otherwise call into question the impartiality of the board,” states the report.

What is known is that, on May 10, Ms Kenny spoke at a developers’ investment conference in the Clayton Hotel in Dublin. The conference was organised by estate agents Hooke & MacDonald.

“The current planning system can be misused or exploited by a small minority, a couple of hundred people, to prevent the progression of over 80,000 units,” Ms Kenny said at the conference.

Such sentiments would have found favour with her audience, but would be highly disputed by some politicians, environmentalists, and communities which have objected to what they consider bad planning.

That wasn’t the first time Ms Kenny had made such comments to investors. At an event in September 2021, she referenced the very high number of appeals for strategic housing developments (SHD), which was designed as a fast-track planning process for large-scale housing.

“It is unfortunate,” she said of the level of appeals. “90%, 95% are appealed… people just generally have an issue with new homes being built.”

She also gave a tip to developers. “Take your chances and get the higher densities because the board is very focused on the national policy,” she said at that conference. 

These two appearances are understood to be among those referenced in the internal report.

'Immediate neighbourhood'

Another issue raised in the internal report is board members or staff dealing with cases “in their own immediate neighbourhood”. Again, the potential conflict of interest is obvious.

Board member Michelle Fagan had a role in granting permission for developments in her south Dublin neighbourhood.
Board member Michelle Fagan had a role in granting permission for developments in her south Dublin neighbourhood.

Ms Kenny was involved in one SHD which was reported in The Ditch to be located 500m from her own home. Other reports in The Ditch and Irish Examiner listed a number of cases in which board member Michelle Fagan had a role in granting permission to developments in her south Dublin neighbourhood.

The internal report does note that the term “immediate neighbourhood” is not specifically defined in the board’s code of conduct but that this should be reviewed and that excluding a large geographic area in built up urban areas could be problematic.

The question does arise as to whether the term “immediate neighbourhood” has in recent years been interpreted in a looser manner than was the case among board and staff members theretofore.

One previous board member, for instance, was known to recuse himself from any case in the county where he previously worked or in the county where one of his wife’s family was active in environmental issues. That degree of self-exclusion was certainly not present in the files examined.

Two-person boards

Ms Fagan, who was appointed to the board in 2018, also features in another issue raised in the internal report. She and Mr Hyde formed two-member deciding boards in a disproportionately large number of cases involving appeals against telecommunication masts.

Paul Hyde who formed two-member deciding boards with Michelle Fagan in a disproportionately large number of cases involving appeals against telecommunication masts. File picture
Paul Hyde who formed two-member deciding boards with Michelle Fagan in a disproportionately large number of cases involving appeals against telecommunication masts. File picture

In 111 out of 147 cases, they formed the two-person board on which there was “a very significant statistical irregularity in the incidence of departures from inspectors’ recommendations”.

Inspectors make a recommendation to the board based on the inspector’s investigation.

The board is not obliged to follow the recommendation but does so in about 90% of cases. In the telecommunication mast cases examined, the board accepted the recommendation in only 74% of cases. The use of two-person boards has been discontinued since last month as part of the new blueprint announced by the housing minister.

Changes to inspectors' reports

There are other even more serious issues documented in the report that are not obviously attributable to anybody but do raise questions for the chairman, Mr Walsh, in terms of his stewardship. 

The most serious of these is of changes made to inspectors’ reports “in substantive and material way”. The inspectors, as noted above, present the evidence to the board for decision. Independence is key to the inspectors’ work. 

Yet the internal report found examples of “informal suggestions/requests, or what could be perceived as directions, to inspectors to change their reports”.

The report notes that inspectors would feel “under pressure” to comply with any such request or direction. Such practice infers that a board member or member wanted the inspector’s report to reflect their preordained decision, rather than forming a decision based on the inspector’s report.

Any such conduct would completely undermine the impartiality of the planning process or even the discharge of the quasi-judicial function of the board. 

In recent years, two cases arose in High Court proceedings where changes to the inspectors’ reports were discovered in the course of discovery.

If the legal actions hadn’t been taken, the highly irregular amendments would never have been discovered. The internal report suggests that there are more like this hidden in the files.

The response from Mr Walsh is that he is examining the report and the specific cases cited: “In respect of potential publication of the internal review, legal advice received by the chairperson has advised that publication of the report at this time would be premature, given the risk to prejudicing any possible follow-up actions or investigations arising.”

Sinn Féin spokesperson on housing, Eoin Ó Broin. File picture: Gareth Chaney/ Collins Photos
Sinn Féin spokesperson on housing, Eoin Ó Broin. File picture: Gareth Chaney/ Collins Photos

Mr Walsh is also initiating an investigation into the leaking of the report to the Irish Examiner.

Sinn Féin housing spokesman Eoin Ó Broin has written to Mr Walsh asking him to publish the document in the public interest.

“Given the growing level of disquiet amongst the public after months of drip-fed revelations, we need to ensure full transparency with regard to the extent of the problems currently taking place at the board,” said Mr Ó Broin.

Such transparency is essential if public confidence in An Bord Pleanála is to be re-established. 

The reputation and functioning of An Bord Pleanála is built on impartiality. Everybody, in favour of or opposed to any particular development, must have confidence that, at the very least, there is no hidden agenda contained in board decisions. 

Those on the losing side will inevitably complain and suspect, but public confidence built up over decades was always a robust defence to cries of foul from disappointed parties.

Some observers trace the genesis of the board’s current problems to a change of tone in which the organisation was no longer aloof from the fray.

“There are questions as to whether the board has been politicised in recent years,” said Lorcan Sirr of Technological University Dublin.

“It is a quasi-judicial body. 

"Going back a few years, you wouldn’t go near a member of the board if you met them in the street, much like a judge. 

You were conscious that they had to not just be impartial but be perceived to be so. They thought that too. I don’t think that’s there now.

“The reputation has been tarnished. For example, in 2018 members of the board went to visit Ballymore in London. How does that look to an outsider? 

"Increasingly, we have seen indirect links between developers and officials or members of the board, like when they speak at developer conferences. What it looks like is there has been increased politicisation of the board or else somebody has been asleep at the wheel.”

For now, those in charge are just going to carry on.

Mr Hyde, whose issues burst forth the dam of controversy over the last six months, has left the building. Nobody could describe him as a fall guy but the problems that were first identified in his conduct are now plainly much wider and deeper than anything in which he was engaged.

Others need to step forward and be accountable by, at the very least, providing clear explanations as to what exactly went wrong.

Without that, it’s difficult to see how confidence can be restored and the board returned to its former standing. 

 

 

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