Mick Clifford: Do ABP revelations mean Government must plan for wider inquiry?
The inspector’s report is supposed to be independent of the board and is considered by the board in making deliberations. Picture: Gareth Chaney/Collins Dublin
There is a long tradition of how “the inquiry” is set up in Irish politics. A controversy arises, often through the media, and the government reacts by setting up the inquiry.
More often than not, this is designed in the first instance to take the heat out of the controversy.
As a result, the inquiry is narrow in its term of reference, designed not to poke around too much in case it stumbles across the bones of another controversy.
Any further excavation by the media or opposition is sidelined by a government which expresses the ultimate faith in the ongoing inquiry, which it is also hoped, will keep going on and on and ultimately dock in a safe harbour some time in the future.
So it goes with the inquiry set up by the Minister for Housing Darragh O’Brien over controversies that have arisen in An Bord Pleanála.
Mr O’Brien has asked senior counsel Remy Farrell to investigate allegations that have arisen about the deputy chair of An Bord Pleanála, Paul Hyde.
The allegations concern, in the first instance, conflicts of interest over planning decisions in which he was involved.
Through the online site, The Ditch, initially, and subsequently in the , there has been a flow of information emerging from the planning body that does not paint a pretty picture.
Farrell’s inquiry is centred on three cases in which Hyde was involved where there may be a conflict of interest.
The lawyer will also examine an issue around the deputy chair’s personal finances. Now, however, other issues have arisen in relation to governance on the board.
Today, the is reporting on details of a case in which the Cork-born Hyde suggested adjustments to an inspector’s report during a case.
The inspector’s report is supposed to be independent of the board and is considered by the board in making deliberations.
The inspector visits the site of an application or appeal, inputs the various environmental and technical reports, and presents his or her work to the board.
This is then considered by the board members, usually consisting of a subdivision of three of the nine-person board.
In this manner the inspector’s report is effectively “evidence” being presented to the quasi-judicial body.
Sources in the legal and planning sector have told the that any adjustment to the report by a board member would be highly questionable.
A reply to a parliamentary question by junior environment minister Peter Burke last September did give an outline of the different functions of inspector and board member.
“Since the establishment of An Bord Pleanála in 1977, planning legislation has clearly assigned final responsibility for decisions on planning appeals to the board of An Bord Pleanála,” Mr Burke said.
“The role of the board is to consider the inspector’s report, along with all other relevant application documentation and submissions from third parties including observers, in order to come to a final decision.
"Where the board’s conclusion differs from that of the inspector, the decision must include the reasons for so differing in order to ensure transparency in the decision-making process.”
Unfortunately, a lack of transparency has marked out the decision-making process of the board.
The only really transparent aspect is the requirement to publish the inspector’s report. And that is how issues have come to light around the adjustment of the inspector’s report.
Two versions of the inspector’s report were discovered last year within ABP relating to a compulsory purchase order for a road as part of the South Kerry greenway.
Once brought to the board's attention, Mr Hyde swore an affidavit about his role in the differing reports. He swore that the board met on June 17, 2020 to consider the inspector’s report on the appeal.
“I suggested certain amendments to the original inspector’s report to the inspector’s supervisor and I am aware that she also made her owns suggestions to the inspector,” Mr Hyde’s sworn statement declares.
“I understand that the inspector considered these suggestions and made amendments to the report and I can confirm that the suggested amendments are reflected in the updated inspector’s report.”
Then, at another board meeting four months later, following the adjustments to the inspector’s report, the board made a decision on the appeal.
“I can confirm that at that meeting on October 7, 2020 myself and other board members considered hard copies of the update Inspector’s report and it is the update inspector’s report on which the board made its decision to approve the proposed road development and confirm the CPO.”
The Ditch has reported that in another case that came before the board in 2020, “edits” were made to the inspector’s report.
This concerned a Strategic Housing Development on Dublin’s South Circular Road. A subdivision of the board, chaired by Mr Hyde, “noted some discrepancies in the inspector’s report and deferred the case for further consideration. Following amendments to the inspector’s report the board met again,” according to court documents.
This again is considered in planning and legal circles to be “highly unusual”.
The question immediately arises as to whether or not the current inquiry is sufficient to examine what is going on.
The scope and reach of the power of An Bord Pleanála means it has to have the full confidence of the public.
It is difficult to see right now how the board can enjoy that level of confidence and what it will take to have it restored.
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