An obituary for An Bord Pleanála
Proposals in second planning bill will likely add to delays in the delivery of housing and energy, not just on the decisions being judicially reviewed but because of the uncertainty introduced into the whole system on the interpretation of the law. Picture: Denis Minihane
An Bord Pleanála as we knew it, is no more — it has been subsumed back into the darkness of political control. The safeguards for its independence, to limit political control and provide for Oireachtas oversight now stricken from the statute books as of last week.
The prospects for its successor are bleak. Our ability to hold its planning decisions to account before the courts are even bleaker. This is all on foot of a planning bill railroaded through before Christmas, and another one approved at Cabinet last Tuesday to be advanced after Christmas.
Depending on your perspective, next year “promises” or “threatens” curtailment of access to justice rights to hold bodies like An Bord Pleanála to account for the lawfulness of its decisions.
It is hard to conceive of a more inappropriate political response to what has occurred to the board, or a more dysfunctional response to what is needed to restore confidence in our planning system and facilitate the speedy lawful delivery of homes and renewable energy, given our housing and climate and energy crises, than what has been done to the board last week and what is proposed on access to justice.
Born out of shocking political planning scandals, An Bord Pleanála was established in 1977, as a significant and positive political and legislative commitment to bring independence to planning decisions, and remove them from political control and interference.
In 1983, that was reinforced with further legislation requiring the involvement of civil society in the nomination of persons to be considered by the minister as board members.
A special committee, including the president of the High Court, was also specified to provide for the selection of nominees for the position of chairperson, ultimately appointed by Government.
The nomination system was certainly not perfect, but it represented a significant further policy commitment to reduce political discretion.
An Bord Pleanála was also not without its flaws and failures. However, the extent of dismay over recent years reflects how it had been respected by many as a jewel in the crown at the apex of our planning system.
The Office of the Planning Regulator, the body established on foot of the Mahon tribunal to act as a watchdog over the health of planning was, at best, asleep on the job.
An Bord Pleanála, the body responsible for the most important decisions in our planning system, was inexplicably put to the bottom of the OPR’s review list.
Even when in the last three years there was an exponential increase in the amount of its planning decisions found to be unlawful by the courts , the OPR entirely failed to react in time to those serious health warnings given the issues with the board’s decisions. It was only when red alerts were raised that it was effectively forced to use its discretionary investigatory powers.
In recent years, public confidence in An Board Pleanála's decisions plummeted, and with that an understandable increase in judicial reviews.
Despite the obvious issues with it, this Government took a year and a half to dispense with it. However, that did not happen until it inflicted a toxic injection of further SHD applications into the board’s systems to be processed.
Safety mechanisms around quorums for board decisions had been reduced by the earlier Fianna Fail/Green coalition.
The bill which completed in the Oireachtas last Thursday now removes multiple safeguards over board appointments in the current Planning and Development Act.
Housing Minister Darragh O’Brien, supported by Government, rejected simple quick reforms of the current system in favour of giving himself new powers which mean he has total control over the specification of a new system to select and appoint board members.
The bill does not require a competitive process open to the public. We have no idea what will or will not be done. In short, the bill allows him, and future ministers, do whatever they like.
While such powers may not be exploited by this or successive ministers, it is deeply concerning to see so many safeguards have been removed and how amendments that could provide safeguards on the new powers were entirely rejected.
Oireachtas oversight on further changes to the size and configuration of the board has been removed, as have limits on the number and proportion of overall board members the minister can install as temporary appointments for 12 months.
He can now appoint both former and acting civil and public servants. Acting civil servants will have the unenviable task of being expected to act independently on the board in deciding potentially against the wishes of the department and Government to whose service they will have to return.
No safeguards are in place to ensure this does not provide a conveyor belt access on to the board from private sector interests. A new role of interim chairperson can now be appointed at the total discretion of Government for an extraordinary 12 months, bypassing the existing special committee to identify nominees.
This appointment can even be extended to two years. Now, board meetings can be held online without any reason — so no one will know who effectively is 'in the room' when planning decisions are discussed and made.
On Tuesday, Cabinet approved the other post-Christmas planning bill. The bill has alarming changes to the rules on judicial review. The devil will be in the detail of the text. But the intent is clear and unashamed. It is to push back hard against the ability to pursue judicial reviews — the ultimate safety mechanism the public has to hold public authorities to account for unlawful decisions.
Legal arguments around the lawfulness of these new constraints on access to justice will invariably add to the complexity and length of court cases on planning decisions.
So proposals in this further bill will likely add to delays in the delivery of housing and energy, not just on the decisions being judicially reviewed but because of the uncertainty introduced into the whole system on the interpretation of the law.
As with all obituaries, it is important to acknowledge the deceased was not without flaws, but it was comprised and is still staffed by many decent individuals of the utmost integrity, competence and commitment. We thank them for their service.
We pray they will rise to walk independently again, and for the vigilance of our courts as the ultimate guardian angel.
- Attracta Uí Bhroin is environmental law officer at the Irish Environmental Network. This article is her a personal opinion
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