6 Ormond Quay Upper

Dublin 7

D07H324

The Secretary

An Bord Pleanála

64 Marlborough St

Dublin 1

D01 V902

14 April 2022.

By email only to bord@pleanala.ie, communications@pleanala.ie

Re: the imperative of An Bord Pleanála pursuing a criminal complaint under Sections 147-149 and 156-157 of the Planning and  Development Act 2000 (the “Act”) against Mr Paul Hyde, and acknowledging that he is no longer       a member of its board

Dear Sir/Madam,

I am writing giving you information sufficient to ground a criminal complaint under Sections 147 and 148 of the Act which can be prosecuted by An Bord Pleanála (ABP) with the consent of the Director of Public Prosecutions. I believe for ABP to prosecute would be appropriate in this instance in circumstances where the subject of this complaint is the deputy chairperson of ABP who has brought it into disrepute. I am attaching copies of all material in my possession relevant to this complaint.

Background

Deputy chairperson Paul Hyde has served as a board member of ABPsince 1 May 2014. He has also served as chairperson of the SHD division since December 2017. He has engaged in behaviour that cuts across his obligations under the Planning Acts , the criminal law and the ethics acts.

1. Failure to declare interests

Below is attached a list of developments where Mr Hyde had a conflict of interest.

• Land registry records attached indicate Mr Hyde is the owner of the following properties: 30 Lindeville, Cork; 4 Castlefield,Baltimore, Cork; Apt 30 Pope’s Hill, Blackpool, Cork; Apt 24 Pope’s Hill, Blackpool, Cork; 16 Watergold, Douglas, Cork; Unit 2 Maryborough Green, Douglas, Cork; land at Rathduff, Grenagh, Cork (co-owner) [see attachment].
• Court and other records indicate receivers were appointed to dispose of Apartment 30 Pope’s Hill; 16 Watergold and the land at . There are pending transactions on two of the folios. There are no pending transactions on the land at Rathduff  although it is currently advertised for sale.
• Mr Hyde also has a 25 percent shareholding in H20 Property Holdings Ltd a company incorporated in Ireland on 16 November 2001 (CRO 350179). It was previously named Fingerpost Builders Ltd.It formally changed its name on 17 May The other 75 percent shareholding is owned by Mr Hyde’s father, Stephen Hyde. According to land registry records, the company is the registered owner of Folio CK106589F, a two-acre, partially developed, plot of land at Pope’s Hill. There are no pending transactions on the folio.
• Mr Hyde declared he had no interests in his 2021 and 2022 declarations of interest to ABP (submitted in accordance with section 147 of the Act) [attached below]
• On 9 March 2022 Mr Hyde voted on an SHD application for a development in Blackpool, Part of the land of the applicant in that case is located less than 50 metres from the land owned by Mr Hyde’s company (H20 Property Holdings Ltd). Mr Hyde did not declare a conflict of interest at the board meeting as required under section 148 of the Act.

The Law

• Section 147 of the 2000 Act states at (1): It shall be the duty of a person to whom this section applies to give to the relevant body a declaration in the prescribed form, signed by him or her and containing particulars of every interest of his or hers which is an interest to which this section applies and for so long as he or she continues to be a person to whom this section applies it shall be his or her duty where there is a change regarding an interest particulars of which are contained in the declaration or where he or she acquires any other interest to which this section applies, to give to the relevant body a fresh declaration.

(2) A declaration under this section shall be given at least once a year.

(3) (a) This section applies to the following persons: a member of the Board…

Section 147(3)(b) requires a board member to declare “any estate or  interest which a person to whom this section applies has in any land, but excluding any interest in land consisting of any private home within the meaning of paragraph 1(4) of the Second Schedule to the Ethics in Public Office Act, 1995” and “any business of dealing in or developing land in which such a person is engaged or employed and any such business carried on by acompany or other body of which he or she, or any nominee of his or hers, is a member”. Failure to comply with the foregoing is anoffence under section 147(11) of the Act.

• Section 148(1) provides that “Where a member of the Board has a pecuniary or other beneficial interest in, or which is material to, any appeal, contribution, question, determination or dispute which falls to be decided or determined by the Board under any enactment, he or she shall comply with the following requirements: (a) he or she shall disclose to the Board the nature of his or her interest; (b) he or she shall take no part in the discussion or consideration of the matter; (c) he or she shall not vote or otherwise act as a member of the Board in relation to the matter; (d) he or she shall neither influence nor seek to influence a decision of the Board as regards the matter”.

 Failure to comply with the foregoing is an offence under section 148 (10) of the Act.

• Section 149(1) provides that “proceedings for an offence under section 147 or 148 shall not be instituted except by or with the consent of the Director of Public Prosecutions”.

2. Composition or arrangement with creditors

Mr Hyde has clearly experienced compromising difficulties with several property investments since his appointment to ABP.

According to The Ditch, in April 2015 Promontoria Aran took over the Ulster Bank mortgage on land in Rathduff, County Cork, owned by Mr Hyde and three co-investors.

In March 2017 the distressed loan buyer issued High Court proceedings against Hyde and his co-investors but the case was discontinued four months later. According to Cork County Council planning records, the property has since been bought from a receiver.

Hyde had failed to make repayments on another Ulster Bank mortgage for a property he owned since 2007 in Douglas, County Cork. In October 2017 Promontoria Oyster appointed a receiver to sell the one-bed apartment.

Hyde had rented the apartment for €950 a month as late as October 2016. In July 2021 it was sold at a distressed property auction for €121,000.

Receivers were appointed to dispose of apartment 30 Pope’s Hill; 16 Watergold and the land at Rathduff. There are pending transactions on two of the folios.

It is clear that Mr Hyde has benefited from arrangements whereby his creditors have accepted amounts less than they are owed.

The Law

Section 106 (13) of the Act states that – “(d) A person shall cease to be an ordinary member of the Board if he or she…

• makes a composition or arrangement with creditors”.

A composition is an agreement among the creditors of an insolvent debtor to accept an amount less than they are owed, in order to receive immediate payment.

Mr Hyde should have left the board when he made compositions and arrangements whereby his creditors have accepted amounts less than they are owed.  He has brought ABP into disrepute by not resigning when he was so compromised. He has ceased membership of the board, even if he has somehow extricated himself from his financial messes. His membership is legally over.  Clearly any party to proceedings of ABP can challenge any decision in which Mr Hyde has been involved since the first composition outlined above. This will be the subject of a separate complaint by me to the Standards in Public Office Commission which considers complaints about behaviour “inconsistent with the proper performance by the specified person of the functions of the office…or with the maintenance of confidence in such performance by the general public, and [where] the matter is one of significant public importance”.

All this means that ABP has no option but to overcome its inertia in facing up to Mr Hyde’s wide-ranging delinquencies.

3. Ethics Legislation

According to the Ditch Mr Hyde signed off on a controversial build-to-rent development on which his brother’s company had worked, carrying out the emergency services access report. Both developments were met with objections by local residents.

ABP board members are required by the organisation’s code of conduct to “disclose any possible conflict of interest” when adjudicating on planning matters. When asked if was aware that a company directed by the deputy chairperson’s brother had worked on contested developments, ABP told The Ditch it “has no comment”.  While it seems the relationship between Hyde and his brother’s company isn’t covered under ABP’s code it does seem to be embraced by ethics legislation which extends to  “any body, organisation or group appointed by the Government or a Minister of the Government”.

Section 4 of the Standards in Public Office Act 2001 provides at (1): Where a person (“the complainant”) considers that—

(a) a specified person or a person who, in relation to a specified person, is a connected person [defined in Section 2 (2) (i) of the 1995 Ethics in Public office Act to mean a relative] may have done an act or made an omission … that is…such as to be inconsistent with the proper performance by the specified person of the functions of the office … or with the maintenance of confidence in such performance by the general public, and the matter is one of significant public importance… the complainant may make a complaint in relation to the matter to the Commission.

An Bord Pleanála was reconstituted in 1976 in an Act that enshrined the highest standards of integrity.  Mr Hyde has fallen short. Frankly it was never envisaged that ABP members would play the property game, at diverting levels of risk, while full-time and very well-paid members of its board. But the ethical issues for Mr Hyde are far more profound than just his diversion.  Any reasonable person would say there is a danger of objective bias in his decision-making in circumstances where he owned land next to a site on which he was involved in making quasi-judicial decisions.

Conclusion

It is important that the board itself behaves properly and to the highest ethical standards in this instance. I note that in separate correspondence the board has confirmed that notices reminding members of the need to file declarations were sent out, for example, in January, February and September 2019.  ABP appeared to defend Mr Hyde’s stance in not filing a return in correspondence with Sabrina Joyce-Kemper and others,  in which ABP went out of its way to assert at that time that “it is not accepted [by the Board that the register] is not being properly maintained”. I note also that it was improper for  ABP to refuse to confirm to The Ditch website, which initiated the scrutiny of Mr Hyde,  whether he had disclosed the appointment of receivers to three of his investment properties.

It is important for maintenance of confidence in this important quasi-judicial organ of state that Mr Hyde does not drag down ABP with him. The broad tainting of the planning process has not extended to An Bord Pleanála for many years, in order to maintain public confidence it must demand probity of all its agents. My interest in this derives from the fact that as chairman of An Taisce, I was on the interview panel for the chairperson of ABP twenty years ago.

I am also making a complaint to the Standards in Public Office Commission about Mr Hyde.

 It is submitted that there is ample evidence to prosecute Mr Hyde for offences under sections 147 and 148 of the Act. Furthermore he is, in law, no longer a member of ABP.

Please acknowledge receipt of this letter.

Yours faithfully,

Michael Smith

final Hyde Criminal Complaint Bord Pleanála Word PH Asset Schedule 15.04.14
PH S.147 Return 31.01.22
PH S.147 Return 31.01.17
PH S.147 Return 29.04.14
PH S.147 Return 26.01.15
PH S.147 Return 22.01.20
PH S.147 Return 19.01.18
PH S.147 Return 19.01.16
PH S.147 Return 14.01.19
PH S.147 Return 5.02.21
PH Asset Schedule 31.01.17
PH Asset Schedule 26.01.15
PH Asset Schedule 19.01.16
fwddeclarationsofinterestpaulhyde 24 Pope's Hill File (1)
Paul Hyde property searches file (1)
Rathduff Folio (1)
Courts Service Online Rathduff High Court proceedings (1)
Paul Hyde ABP Conflicts of Interest - Sheet1