Planning board drops defence of case taken against granting of permission to build telecommunications mast

Eir — the original applicants for the mast itself — asked that the application be remitted to the board once more, meaning the entire case will be considered on its merits for a second time once the original decision is quashed.

Planning body An Coimisiún Pleanála has dropped its defence of a legal case taken against the granting of permission to build a telecommunications mast in Co Kilkenny after a four-year battle.

The planning authority told Peter Thomson, the Kilkenny man who took the case against the initial June 2021 decision, it would no longer be opposing the quashing of the original decision made by its former deputy chair Paul Hyde for several reasons — but denied it now accepted that bias in its decision-making had been a factor.

Peter Thomson and his wife Doreen had initially objected to the construction of the telecommunications mast adjacent to their home in Kells, alleging the decision to grant permission had been affected by “bias”.

That objection was initially dismissed by the High Court as being made outside the time limit of eight weeks for taking a legal action, only for that decision to be overturned by the Court of Appeal.

An Bord Pleanála, as the commission was formerly known, then appealed the decision to allow the Thomsons' judicial review to the Supreme Court, only to lose that appeal in a landmark decision last July.

The commission had insisted throughout the various legal hearings over Mr Hyde’s decision that it would be robustly defending the case even it were to lose the Supreme Court appeal — however, no defence will now be mounted.

The Thomsons had suggested in their original High Court submissions that a pattern of decision-making by Mr Hyde in the telecommunications mast cases he had presided over had amounted to bias given the statistical improbability of the decisions in question. Picture: Dan Linehan

In a letter from its solicitors Philip Lee, the commission told Mr Thomson that in the aftermath of the adverse Supreme Court ruling, it had “considered its position” with regard to a number of factors, including the four-year time gap since the case was first taken, changes in personnel at the body, and “certain conclusions” of an unpublished report into goings-on at the commission compiled by senior counsel Lorna Lynch.

“In preparing opposition papers in these remitted proceedings and on further consideration of the matter, the commission has determined that it will no longer oppose an order of Certiorari (rendering the initial decision invalid) of its decision dated 17 June, 2021,” the commission said.

However, it added it “continues to be the position” of the commission that the statistical evidence put forward by the Thomsons regarding Mr Hyde’s decision-making “did not demonstrate bias — objective or subjective”.

The Thomsons had suggested in their original High Court submissions that a pattern of decision-making by Mr Hyde in the telecommunications mast cases he had presided over, originally reported by the Irish Examiner, had amounted to bias given the statistical improbability of the decisions in question.

The commission said Ms Lynch’s assertion in a press statement concerning her unpublished report — that “a change in policy emphasis” encouraging mobile mast infrastructure had been seen at An Bord Pleanála — could now be confirmed as relating to two Government circulars dating from 2018 which underlined that mobile infrastructure was to be encouraged by local authorities.

While insisting Mr Hyde’s decision did not constitute bias, the commission admitted “there was error of law” in that the board members had “misinterpreted the circulars” in question.

The case was briefly heard at the High Court on Monday, where the commission’s decision to drop the case was revealed. 

However, Eir — the original applicants for the mast itself — asked that the application be remitted to the board once more, meaning the entire case will be considered on its merits for a second time once the original decision is quashed.

In May 2022, the Irish Examiner first reported that Mr Hyde had voted to override his own planning inspectors in the vast majority of applications for telecommunications masts over a near-two-year period.

He had, in fact voted, voted to overturn refusal recommendations by planning inspectors in 31 of 36 mast applications in the 20 months from September of 2020.

By contrast, other members of the then nine-strong board voted to overturn the recommendation of planning inspectors on three out of nine occasions over the same timeframe.

While it was not unusual for board members to overrule its own inspectors, informed sources at that time indicated such overrulings occured in roughly 10% of cases, making Mr Hyde’s rate of overturning his own inspectors roughly eight times the average.

It had also been argued that the sheer rate at which Mr Hyde presided over telecommunications mast decisions — he was involved in roughly 75% of the 100 decisions made — defied logic, given cases considered by the board were supposed to have been randomly allocated.

The commission had not replied to a request for comment at the time of writing.

The Department of Housing — the commission’s parent body — said it would not comment on a specific legal case, saying any decision “is a matter for the commission, who are independent in undertaking prescribed functions set out in the planning and development acts”.

“The outcome of these long-running proceedings represents a vindication for Peter and Doreen Thomson, who persevered in their efforts over the past number of years to shine a light on the pre-determination of cases by senior members of what was An Bord Pleanála,” Eoin Brady, partner at FP Logue solicitors, who handled the Thomsons case, said.