Cianan Brennan: Government's handling of An Bord Pleanála scandal has revealed its ideology

An Bord Pleanala has found itself embroiled in scandal throughout 2022.

Laura McCarthy and her husband moved into their home in Raheen in Limerick in January 2021. She was heavily pregnant at the time, and buying their first home had been “an enormous relief” for the couple, she says.

Twelve months later, she looked out her window on a winter’s morning and saw that a giant steel structure, 21 metres in height, had been erected beside her estate overnight.

“It’s a monstrosity, absolutely vile,” she tells the Irish Examiner.

Laura’s animosity towards the telecommunications mast, for such it was, is visceral.

“It’s huge, it’s completely out of place,” she says. 

“I wouldn’t have bought my house here, honestly, if I’d known it would appear. It really does bother me. I just don’t understand why it’s there, how it can be that close to a school."

She describes her delight at having bought “just before things got really bad” in the housing market after her family’s rent had become extortionate.

“I was just so happy. Our house isn’t special, but I was delighted. I kept telling people how lucky I felt, and I obviously jinxed myself, because then this monstrosity showed up. It’s all you can see.

We can’t move house. We don’t have €100,000 to go challenging this in court. I’m raising my daughter here from a very young age, and it’s just really awful when something wrong like this happens because you feel so powerless.

“I just hate the thing. It’s all you can see when you’re looking out our upstairs windows. This giant eyesore,” she says. 

Laura’s story is a sharp reminder that planning decisions, no matter how innocuous or even justified they are, have real-world implications for real people. Planning matters.

But while Laura may feel powerless, the issue she cites is far from unique to her estate and her locality. The application for the mast in her area was made by the telecoms operator Eir and was initially rejected by Limerick County Council, which said it would contradict the 1996 telecommunications antennae and support structures guidelines for planning authorities, which state that such masts should only be sited in a residential area “as a last resort”.

An Bord Pleanála disagreed with the local authority, however, with their planning inspector stating in her report in December 2020 that given the mast was going to be on the site of an existing Eir exchange its construction was justified, while also submitting that the finished mast wouldn’t impact on the area to any “material degree”.

Since that decision, throughout 2022, An Bord Pleanála has found itself embroiled in scandal, including some relating to the decisions it made regarding telecoms mast planning. A factor in this particular issue was the person who made the majority of those decisions – its former deputy chair Paul Hyde, currently facing the prospect of a criminal prosecution due to alleged conflicts of interest in his administration of the board. Mr Hyde has always denied any impropriety.

Laura McCarthy stands near the telecommunications mast close to her home in Raheen. "It’s all you can see when you’re looking out our upstairs windows. This giant eyesore,” she says.

These masts have been going up everywhere, often over the protests of the planning inspectors in question (this is one area where Laura’s situation differs from the majority). In fact, in one 20-month period, An Bord Pleanála ruled on 101 mast decisions. It approved 89 of them, a pass rate of just under 90%.

But other outraged citizens across the country who’ve had to deal with mast situations of their own haven’t missed the fact An Bord Pleanála has had an annus horribilis, nor the fact that the planning authority’s enthusiasm for telecoms masts would appear to be more than a little disproportionate.

Some are starting to see the benefit in risking a legal action against the mast decisions, where before the potential legal costs of a loss had seemed prohibitive. If An Bord Pleanála were to lose some of those challenges, the floodgates could conceivably open.

Which makes the Government’s staggered reactions to the An Bord Pleanála controversy – and the wider housing crisis across Ireland – all the more incomprehensible, all the more galling.

The more recent problem now that An Bord Pleanála’s woes have been exposed for all to see is not that the Government hasn’t responded – it's that it has responded in a manner which could well see those mistakes repeated, and which has aimed squarely at making access to justice via the legal process harder to come by for wronged citizens. And it has been doing so all year.

The genesis of that approach was seen last January, some months before Mr Hyde’s travails began after a series of articles regarding his alleged conflicts of interest were published by online investigative outfit The Ditch.

Paul Hyde is facing the prospect of a criminal prosecution due to alleged conflicts of interest in his administration of An Bord Pleanála. Mr Hyde has always denied any impropriety.

Back then, the Department of Housing’s junior minister Peter Burke briefed the media that the Government had the process of judicial review – by which anyone can challenge the correctness in law of the decisions of a State body – firmly in its sights as needing reform.

The thinking was that too many planning decisions were being slowed down by allegedly spurious legal challenges from serial objectors such as Peter Sweetman, who tended to make principled objections to developments, regardless of whether or not they were in their own locality.

Whether this approach made sense or not is now moot – what matters is that it has been carried forward into the same space as the fall-out from the An Bord Pleanála farrago, and the implications of that are stark.

That this is State policy is beyond question given it has been consistently applied all year. The methods by which it has been applied however are reprehensible, and do not reflect well either on the Department of Housing or its senior minister Darragh O’Brien.

Independent review

First, at the end of April in the relative infancy of the scandal surrounding Mr Hyde, Mr O’Brien announced an independent review – to be carried out by renowned senior counsel Remy Farrell - would be commissioned into the then-deputy chair’s actions.

The problem with that review is that the terms of reference were so absurdly narrow that it was never likely that they would expose systemic problems at An Bord Pleanála, and if Mr Hyde were to be a casualty of the process, he would likely be the only one.

As it happens, Mr Farrell’s review has led to the recommendation that criminal proceedings be initiated against Mr Hyde, who resigned his role at An Bord Pleanála in July.

We don’t know why, however, because the report has never been published. This is not unexpected, given it concerns an ongoing legal matter.

You would think however that such a narrow review having exposed potential criminality would be enough to spark an interest at the department into delving root and stem into the dealings at An Bord Pleanála. You would be mistaken.

Instead, Mr O’Brien set an ugly precedent last July when he, at the last moment before the Dáil’s summer recess, chose to ram through 48 amendments to a previously innocuous planning bill under the guillotine, meaning the bill was adopted with minimal legislative scrutiny.

None of the amendments were urgent, but the minister decided to ram them through anyway.

More controversial still was that the bill’s amendments chiefly concerned an attempt to curb people’s ability to challenge planning decisions in the courts, something completely separate from the original bill’s intention.

There was one slight climbdown on the part of the Government in that it eliminated possibly the most controversial amendment – which would have allowed An Bord Pleanála to change its ruling following the lodging of a judicial review against one of its decisions – effectively making a case unwinnable for the plaintiff. But more on that anon.

Fast forward three months and the Minister launched his ‘action plan’ for An Bord Pleanála, with talk of wholesale reform of how board members are appointed among other changes.

Just one problem – the Minister then admitted that there would be no change in the make-up of the board as it stood, which somewhat beggared belief when one considers that Mr Hyde hadn’t been making his decisions in a vacuum.

Former An Bord Pleanala chairperson, Dave Walsh, resigned his role less than a fortnight after instigating an internal probe into leaks at the State body.

Six days later the DPP announced it would be taking criminal proceedings against Mr Hyde.

Still, the controversies kept on coming.

Later that month the Irish Examiner’s Mick Clifford published, to the intense irritation of An Bord Pleanála chair Dave Walsh, details of an internal review carried out at the authority into the issues that had been exposed in the media over the previous seven months.

That review, which has never since seen the light of day, served to confirm all of the stories that had been written (not least in terms of the dubious nature of An Bord Pleanála’s decisions regarding telecommunications masts), and exposed even more murky goings on, such as the fact a second An Bord Pleanála employee had been investigated (and cleared by an independent HR firm) of having had conflicts of interest regarding their role at the body.

Had Clifford not written that story, no one would ever have known about that further internal investigation.

Mr Walsh reacted with fury and launched yet another probe, this time aimed at finding out who had leaked the report (they never did find out). Less than two weeks later he was gone, having taken early retirement. The board was left with no chair, no deputy chair, and just four ordinary board members out of a complement of 10. That is not a good position for it to be in, not least given the housing crisis Ireland finds itself mired in.

So what did the Government do? It followed seemingly the only playbook it knows. It waited until the week before the Dáil was due to break for its Christmas holiday (sound familiar?), the week before a Cabinet reshuffle and the emergence of a new Taoiseach, and rammed through another planning bill with no pre-legislative scrutiny. This one gives the minister the power to appoint wholesale all 15 board members of An Bord Pleanála’s soon-to-be-realised replacement entity.

The scope for misuse of such a concentration of power is massive.

Then on December 12 came the coup de grace – the announcement of the biggest shake-up of Ireland’s planning laws in a generation. And what is back on the table? The curbing of the public’s access to judicial review, and giving the planning authority of the day the right to change its rulings after a legal action has been taken against it. Now, where have we heard that before?

The cynicism of forcing through such important legislation in such a fashion with no buy-in from the Opposition has now become this particular minister’s calling card. It would be egregious enough at a time when the planning system was functioning properly, as opposed to being in the state of implosion that it currently is.

Given every move of the Government since April has seemed aimed at localising the damage of Mr Hyde’s exploits and reducing access to the courts for aggrieved citizens, at this stage you would have to say that response is not based on wrongheadedness – it's based on ideology.

Whether the population can stomach an ideology so blatantly non-transparent, only time will tell.