Report exonerating Kenny ignores the 'perception of bias' problem at An Bord Pleanála

An investigation may have found that director of planning Rachel Kenny was negatively impacted by media reports, but no demand for a retraction was made, writes Mick Clifford
Report exonerating Kenny ignores the 'perception of bias' problem at An Bord Pleanála

Rachel Kenny, director of planning at An Bord Pleanála.

Earlier this week, it emerged that a barrister had been appointed to examine “matters of concern” at An Bord Pleanála. In effect, Lorna Lynch SC was briefed to run the rule over an internal review which was completed last autumn.

The confidential review, details of which were published in the Irish Examiner in October and November, painted a devastating picture of practices and conflicts of interest at the board. The 38-page report confirmed media allegations that had surfaced over the previous six months.

At the time, the organisation's then-chairman, Dave Walsh, said the review couldn’t be published, citing legal advice. This was despite the document having been legally proofed prior to completion. Within An Bord Pleanála, the refusal to publish was seen as disapproval of the review’s contents, and by extension a snub to the three management figures who compiled it. 

Mr Walsh took early retirement 10 days after the Irish Examiner began publishing the details. 

Former An Bord Pleanála chairman Dave Walsh.
Former An Bord Pleanála chairman Dave Walsh.

The staff, through their union Fórsa, unanimously voted confidence in the three management figures who had compiled the review. Fórsa repeatedly called for it to be published.

Instead, new interim chairwoman Oonagh Buckley appointed the lawyer to examine things again. On Wednesday evening, The Ditch news website published the review in full, rendering any such exercise as largely academic.

 Oonagh Buckley, interim chairwoman of An Bord Pleanála. Picture: Leah Farrell/
Oonagh Buckley, interim chairwoman of An Bord Pleanála. Picture: Leah Farrell/

One element of the various controversies not included in the review was allegations against the director of planning, Rachel Kenny. For whatever reason, Mr Walsh at the time decided that these were to be examined separately by an external consultant, unbeknownst to the vast majority of the staff.

Conflict-of-interest allegations

The Irish Examiner has seen a copy of the investigation report. It deals with four allegations published on The Ditch about Ms Kenny last May and June. These concerned her involvement in a case allegedly within 1km or so of her family home and three instances where she was involved in cases where her former husband was working with the applicants, effectively on the other side of the table. 

The issue with all of these was whether or not Ms Kenny, as the director of planning in An Bord Pleanála, had a conflict of interest. Conflicts of interest were at the heart of the controversies that dogged the planning board throughout last year.

The investigation was contracted out to a company owned by Turlough O’Sullivan, former director general of the employers’ body Ibec. It examined the four allegations and found in each instance that Ms Kenny did not have a case to answer.

In the case involving an application in her neighbourhood, the investigation found that the site was actually 1.5km from her home and not 1km, according to Google Maps. Ms Kenny told the investigator she had not assigned the job to herself, as reported in The Ditch, but that the assistant director of planning had assigned it to her, the director.

In one of the cases involving her ex-husband, she says she had no involvement in the case even though her signature was on the digital file, which she said was an administrative issue. 

In another, Ms Kenny “couldn’t recall picking up on [her ex husband’s] involvement”. In the third, she says she had not been advised in advance that elements involving her husband’s landscaping business would be examined at a meeting. She also noted that the opinion formed in this case was as per the inspector’s recommendation. This was presented as evidence that her involvement in respect of her husband’s company had no impact on the outcome.

Nowhere in the report is the danger of a perception of bias discussed. 

Report's conclusions

The ultimate conclusion was that the media reports “misrepresented the facts involved in the cases overall… Presented as they were, it is understandable that these articles created some concerns which led to this review being conducted”.

The investigator, Miriam Maher, went on: “I consider that to be very unfortunate given the impact of such articles on all involved and the difficulties in getting a rebuttal narrative adequately communicated.” 

Despite the alleged errors and negative impact of the articles, nobody contacted The Ditch website, either at time of publication or during the investigation. There was no solicitor’s letter, no dispute of the facts as laid out, no demand for a retraction.

 A spokesperson for The Ditch said that Ms Kenny never responded to their requests for comment for the articles, nor has she ever raised objections to the veracity of the reports.

“Equally, we were not contacted by the external consultant hired by An Bord Pleanála to investigate the allegations,” the spokesperson said, adding the title "stands over" what it published.

Ms Kenny was one of three senior figures to feature in the various allegations that emerged last year. The deputy chairman, Paul Hyde, resigned in July and the DPP is examining a garda file on his activity. 

Former An Bord Pleanála deputy chairman Paul Hyde.
Former An Bord Pleanála deputy chairman Paul Hyde.

Board member Michelle Fagan was named in a number of reports as having been part of a two-person board with Mr Hyde which ruled on applications for telecommunication masts which repeatedly rejected inspectors’ reports and granted planning. Her term as a board member expires this month.

An Bord Pleanála board member Michelle Fagan
An Bord Pleanála board member Michelle Fagan

Last week, the Irish Examiner reported that Ms Kenny also featured in a report by EY consultants into serious issues at the Irish Planning Institute, the representative body for planners. The report found that she had an input into a press release from the institute in 2021 that was initiated in response to negative comments about An Bord Pleanála from judges in High Court actions.

When the board was asked whether there was any danger of a conflict of interest here, the response was a reference to the board’s code of conduct which allows personnel to engage with their professional bodies. Efforts to contact Ms Kenny were unsuccessful.

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