BORD PLEANÁLA: O’BRIEN REVERTS TO RAY BURKE ERA LEGISLATIVE ETHOS
Media ignore Department of Housing’s disarray over how to appoint a new Chairperson to guide discredited planning appeals body
By J Vivian Cooke and Michael Smith
Ireland’s crisis-raddled planning appeals board, An Bord Pleanála (ABP), is an independent, statutory, quasi-judicial body that deals with appeals from local authorities and, at first instance, with some large planning applications.
Its board members were directly appointed by the relevant Minister until 1983 when the system was reformed following unease with appointments of acolytes, including his own constituency advisor, by corrupt Minister Ray Burke in the golden era of Fianna Fáil-led planning corruption.
The reforms established a new ‘arms’ length’ approach where candidates for the position of Chairperson of the board are interviewed by a committee chaired by the President of the High Court and selected by various worthies and NGO bosses whose organisations also have a role in nominating ordinary members.
On 22 November, the government announced that it intended to appoint Oonagh Buckley as interim Chairperson of ABP. The appointment is necessitated by the degringolade of ABP’s credibility in the wake of multiple revelations of delinquency that led to the resignation of both its Chairman, David (Dave) Walsh, and its Deputy Chairman, Paul Hyde, who has been linked to multiple conflicts of interests, failures to declare interests and compromising loan write-offs; and is facing criminal prosecution and three unpublished inquiry reports.
the government announced that it intended to appoint Oonagh Buckley as interim Chairperson of ABP after the resignation of both its Chairman, David (Dave) Walsh, and its Deputy Chairman, Paul Hyde
Buckley is a qualified barrister and adjunct professor of law as well as a well-regarded and experienced civil servant who, during her time in the Department worked on planning policy and legislation. Therefore, she may have been surprised to learn that her elevation to the position of interim Chairperson “will be effected through the use of Ministerial powers to appoint a Deputy Chairperson under existing provisions of the Planning and Development Act, 2000 and further forthcoming amendments through the Planning and Development and Foreshore (Amendment) Bill 2022”. This new Bill is a Department of Housing, (the Department). initiative which was published on 9 November.
The sleight of hand in appointing a new Chairperson, bypassing specific legislation, is a reversion to the gombeenism of a different era and will surely not go unchallenged in the courts
APPOINTING A NEW CHAIRPERSON
There may well be a need to regularise a new Chairperson quickly as the standard way the board operates — in divisions — depends on it. Perhaps reflecting this, the Department emailed Village: “Oonagh Buckley will be seconded to the Dept. of Housing to become an officer of the Minister for Housing. Following that the planned appointment sequence is:
“The Minister appoints Ms Buckley as a temporary ordinary board member [Section 108(4)]
The Minister appoints her from amongst the ordinary board members as ABP Deputy Chair (Section 107)
As the post of ABP Chairperson is vacant, Ms Buckley will under Section 110(1A) [sic] perform the Chairperson’s functions [sic] Section 110(1) functions as Deputy Chair [sic] i.e.
(a) ensuring the efficient discharge of the business of the Board, and
(b) arranging the distribution of the business of the Board among its members”.
An even more dramatic illustration of the position from which the Minister has now resiled was the following exchange on 30 November over a question from Paul Murphy TD:
“Question [From Murphy]: To ask the Minister for Housing; Local Government and Heritage if he followed the procedure set out in s.105 of the Planning and Development Act 2000 in appointing a new ‘interim chair’ of An Bord Pleanála; if not, the reason that he felt able to ignore that requirement.
Reply [From Darragh O’Brien]: The appointment of the interim Chairperson will be effected through the use of Ministerial powers to appoint a Deputy Chairperson under existing provisions of the Planning and Development Act, 2000 as amended – specifically Sections 107 & 108(4) – and through further forthcoming amendments through the Planning and Development and Foreshore (Amendment Bill) 2022”.
The problem is that, while a Chairperson is required, the Planning and Development Act, 2000 (the Act) does not provide for an “interim Chairperson”. In short, all the provisions that allow for direct ministerial appointment under the Act only apply to ordinary members not to the Chairperson.
In order to appoint a new Chairperson, the Minister is obliged to follow the complex procedures detailed under Section 105 which require convening a panel chaired by the President of the High Court and including the likes of the Chairperson of An Taisce, and the Presidents of the Construction Industry Federation and Irish Congress of Trades Unions.
The theory is sound and gratifyingly has been retained under the proposed reforms of ABP in the Planning and Development and Foreshore (Amendment) Bill 2022. Unfortunately, the Act prescribes that the names of fully three recommended candidates go to government and it is almost impossible, bearing in mind the composition of the panel, that one of those will not be the one favoured by the Department of Housing – often, like David (Dave) Walsh, a Departmental insider. This is in part because the Department convenes the interview panel and hosts its meetings: making it unlikely that ‘planning-uninitiated’ panel members would strike a jarring note, as one of the authors of this piece found when he served on the panel. This should be reformed since institutional renewal will not come at the hands of the ubiquitous Departmental insiders who oversee national planning policy.
Certainly, there is scope under Section 105 (6) of the Planning Act for the Minister to amend the composition of the selection panel (theoretically allowing the Minister to appoint himself as the sole member of the selection panel), but there is no power then to circumvent the legal requirements to publish notices of this in Iris Oifigiúil, to make orders, lay such orders before the Oireachtas, etc.
Furthermore, Buckley’s appointment as outlined by the Department can only be a stop-gap measure as the maximum term permissible under 108 (4) (a) is 12 months.
WITHOUT A CHAIRPERSON ABP CANNOT INVESTIGATE MEMBERS OR SIT BY DIVISIONS TO MAKE DECISIONS
In any event, Buckley will only be able to carry out those functions of the Chairperson that the Act permits to be delegated, in the absence of the Chairperson, to the Deputy Chairperson.
Without a Chairperson ABP cannot investigate members or sit by divisions to make decisions
INVESTIGATIONS
Section 110 (2) specifically grants only the Chairperson the discretion to privately interview or formally investigate a member of the Board who they suspect has acted improperly or in such a way as to bring the Board into disrepute. The Section does not allow for a Deputy Chairperson to carry out these acts in the event that the position of Chairperson is vacant.
In light of how events and revelations have unfolded recently involving different members of the board, and indeed the institutional reluctance of former Chairperson Walsh to interview his tainted Deputy Chairperson about his alleged multiple improprieties, this is an essential power that Buckley should have in order to restore confidence in ABP and to be able to respond appropriately to the existing as well as any additional scandals.
DIVISIONS
Furthermore, under Section 112 (1) the Deputy Chairperson is not permitted to assume the role of the Chairperson in giving directions that the board should act by divisions; or assign business to each such division; or establish by such a direction that the divisions fulfill the function of the Board.
It is true that Section 112 (1) and Section 112 (1) (b) grant the Minister and the Chairperson the same authority to make directions to establish divisions of the Board and to give acts taken by those divisions the authority of the full Board. But the wording of Section 112 (1) (a) is very clear in giving the Chairperson sole and exclusive authority to assign business to the divisions once they have been established.
So a Deputy Chairperson can only allocate business to members of the full Board but cannot allocate business to divisions.
Accordingly, it would be a deception to make out against this background that the advantages of the expansion of the board’s ordinary members from 9 to 14 would be real. The proposed arrangement would give rise to a predicament where, if divisions were established to deal with the volume of cases, they would not be able to take on cases as there would be no-one authorised to allocate business to them.
As a consequence, until a Chairperson is appointed under the procedure laid out in Section 105 or the Bill is enacted, only those decisions taken at full board meetings will be valid.
Additional appointments to ABP will not increase the board’s decision-making capacity as such new members will merely be otiose attendees of the full board meetings that would have been held in their absence in any event.
If anything, new appointees in the current situation might slow down decision-making.
With the populus roaring for faster decisions, this is a major unintended failure of the circumnavigation of intended procedures.
CHAIRPERSON’S OTHER POWERS THAT MAY NOT BE LEGALLY AVAILABLE TO A DEPUTY CHAIRPERSON
The Act will allow Buckley to exercise the other powers of the Chairperson.
Section 110 allows the Deputy Chairperson, in the absence of the Chairperson, to “ensure the efficient discharge of the business of the Board” – though the Act is silent as to what necessary powers are allowed to achieve this end – and “to arrange the distribution of business of the Board among its members”.
Section 111 allows the board’s Deputy Chairperson to chair individual meetings of the board in the Chairperson’s absence.
Section 112 (3) delegates to the Deputy an absent Chairperson’s authority to transfer a case from a division of the board to consideration by the full board.
These provisions appear to give Buckley a broad range of powers on a temporary basis. However, much hangs on how expansive the interpretation is of what actions are permissible under Section 110 in order “to ensure the efficient discharge of the business of the Board”. Although a broad interpretation would be allowed, the Act and The Code of Practice for the Governance of State Bodies, adopted in August 2016, vest certain defined functions specifically in the office of the Chairperson that are separate from the business of the board. If that is the case, then any Deputy Chairperson will not be authorised to fulfil these functions in the absence of the Chairperson.
Such functions include:
- The responsibility of the Chairperson to attend Oireachtas Committee meetings.
- The role of the Chairperson under 5 (8) (iii) of the Code in giving direction to Board members in doubt as to whether an interest should be disclosed pursuant to this Code.
- Various reporting obligations.
The Chairperson must make an annual Comprehensive Report and a Statement of Internal Control under Section 2.6 and 2.7 – effectively financial and compliance statements – to the Minister. The Chairperson’s Comprehensive report to the Minister is distinct from ABP’s annual report. The Code specifically defines it as “a confidential letter from the Chairperson of the Board to the Minister of the parent Department”. As the Comprehensive Report is explicitly treated as a confidential matter strictly between the Minister and the Chairperson there is no role for any other members of the board, there are stronger grounds to believe that, notwithstanding Section 110 of the Act, the Code does not permit a Deputy Chairperson to submit a Comprehensive Report.
For similar reasons, the Chairperson’s reporting obligations under Section 3.3 of the Code seem also to be excluded from the scope of Section 110’s “efficient discharge of the business of the Board” clause. This places a duty on the Chairperson to bring matters of non-compliance by ABP to the attention of the relevant Minister. It is clear that this is a function vested in the office of the Chairperson as distinct from the corporate body, as the Code explicitly states that “(I)t is the Chairperson’s responsibility to make such issues known to the Minister”.
As neither the Act nor the Code makes explicit provision for a Deputy Chairperson to fulfil those obligations, the ability of ABP to carry out important obligations depends on an expansive interpretation of an ambiguously worded statute.
For a body that has become mired in judicial reviews and has such a poor record in defending legal challenges, leaving grounds for additional court actions by appointing a Deputy Chairperson to act as “interim” Chairperson is highly inadvisable. There is a particular vulnerability for the board which characteristically operates in “divisions” since the Act requires that they must be allocated by the Chairperson.
DEFICIENCIES IN THE NEW PLANNING AND DEVELOPMENT AND FORESHORE BILL
ORDINARY BOARD MEMBERS
But the problems under the new regime, as laid out in the published General Scheme of the new Planning and Development and Foreshore (Amendment) Bill 2022 (the Bill), will extend beyond the Chairperson to the board itself. The Planning and Development Act 2000, as amended, provides for the appointment of nine members of the Board additional to the Chairperson. Eight of the members are appointed by the Minister for Housing and Planning, from among persons selected from four groups of organisations prescribed by regulations and representative of:
- Professions or occupations that relate to physical planning, engineering and architecture.
- Organisations concerned with economic development, the promotion and carrying out of development, the provision of infrastructure or the development of land or otherwise connected with the construction industry.
- Organisations representative of local government, farming and trade unions.
- Organisations representative of persons concerned with the protection and preservation of the environment and of amenities / voluntary bodies and bodies having charitable objects /rural and local community development, the promotion of the Irish language or the promotion of heritage, the arts and culture / bodies representative of people with disabilities / bodies representative of young people.
The other member is appointed by the Minister from among persons who in the Minister’s opinion have satisfactory experience, competence or qualifications as respects issues relating to the environment and sustainability.
There are currently five ordinary members.
The Planning and Development and Foreshore (Amendment) Bill keeps in place most of this structure but eliminates the prescribed organisations, replacing them with a committee of experts, and increases the number of ordinary members to fourteen. This is perhaps sensible since among the organisations that finished up being prescribed was the extraordinarily delinquent Irish Rural Dwellers Association which successfully proposed both Paul Hyde and Michael Leahy, who is the current chairman of the far-right Irish Freedom Party, to the Board.
What is extraordinary is the discretion the Bill proposes for the Minister.
The Bill prescribes for a new Section 106 which would legislate that:
- The Minister shall appoint the ordinary members of the Board…. (2) The Minister shall, in appointing the ordinary members of the Board ensure that, a) among those members are persons who in the opinion of the Minister have satisfactory experience and a good mix of experience or knowledge of infrastructure delivery, housing, physical planning, sustainable development, architecture, heritage, community and social affairs and corporate governance.
In other words, once “among those members” are one or two who offer (or rather who the Minister thinks offer!) some useful skills and experience it’s entirely up to the Minister what other twelve or thirteen cronies or worthies he appoints to the Bord of this tainted body.
ABP is in desperate need of a fresh start. But it is currently not clear where that may come from. With its proposals to restrict rights to appeal and judicially review planning decisions it appears the Green or ‘good-planning’ agenda is on the back foot and the lessons of Fianna Fáil/Fine Gael corruption and the Ray Burke debacle have been forgotten. The sleight of hand in appointing a new Chairperson, bypassing specific legislation, is a reversion to the gombeenism of a different era and will surely not go unchallenged in the courts.
once “among those members” are one or two who offer (or rather who the Minister thinks offer!) some useful skills and experience it’s entirely up to the Minister what other twelve or thirteen cronies or worthies he appoints to the Bord of this tainted body
SUDDEN CHANGES OF PLAN
At the weekend it was mooted that ABP may get a new name. But that is not provided for in the Bill recently published. Perhaps fundamental amendments are envisaged. But ad hoc incrementalism and corner-cutting against a background of planning corruption, historically — as found by the 15-year Planning Tribunal — and as alleged recently in the case of ABP itself, will not salvage public confidence in the now-again-fragile institutions of physical planning in Ireland.
Perhaps further legislation is envisaged. But ad hoc incrementalism and corner-cutting against a background of planning corruption, historically — as found by the 15-year Planning Tribunal — and as alleged recently in the case of ABP itself, will not salvage public confidence
On 3 November, the day David (Dave) Walsh’s early retirement was announced, the Department stated that “Minister O’Brien will move swiftly to initiate the process of appointing a new Chairperson and will also appoint a Deputy Chairperson as provided under the Planning and Development Act, 2000”. This is also an existing legislative requirement that is being flouted. The Planning And Development Act 2000 makes it an imperative to appoint a Chairperson “as soon as may be”. No delay is tolerable, legally.
The Minister is unlawfully doing nothing about the “as soon as may be” requirement but seems to be deferring action under Section 105 for at least a year
The more recent announcement of an “interim Chairperson” is an extraordinary, unanticipated and problematic change that has not been explained.
Worse still, it is clear the Department does not know what it is doing.
The heads of bill as they appeared in the General Scheme of the Bill published on 9 November, make no reference to the creation of this interim position. Neither did the Department raise the possibility that the Bill will be changed, when its officials were answering questions during the Joint Committee’s legislative scrutiny meeting on 10 November. Department officials confirmed its intention to comply with this imperative: “In the interim – i.e. before the Planning Bill is fully enacted – the Minister is initiating the process of appointing a new Chairperson of An Bord Pleanála, to replace the retiring Chair, and will also shortly appoint a Deputy Chairperson as provided for under the Planning and Development Act, 2000”.
As late as 10 November, in evidence to the Joint Committee, Department officials implied its intention to comply with the imperative to appoint a new Chairperson “as soon as maybe”: “In the interim…the Minister is initiating the process of appointing a new Chairperson”
Contradicting this, a statement to Village from the Department of Housing press office on 28 November, confirming a press release of 22 November, claimed that “the forthcoming Planning and Development and Foreshore (Amendment) Bill 2022 will provide for the position of Interim ABP Chairperson”.
In fact, this statement was issued the day before the cabinet gave approval to Minister O’Brien to add these changes to the Bill. At the time they were announced, the Department’s plan was to make an appointment that relied on future amendments that had not been approved even by the cabinet, let alone by the Oireachtas which alone has the legislative power.
In an onset of bureaucratic ataxia, the Department has embarked on commendable but painstaking consultation with expert witnesses and the members of the Joint Committee but has preempted the conclusions of that consultation process by securing cabinet approvalbefore the Pre-Legislative Scrutiny Report has been published. The cabinet, the Minister and the Department are chasing their tails, in apparent response to criticism, by proposing to amend the Department’s own Bill in committee before anything more than its heads have been published let alone initiated as a Bill.
Overall, as it stands, the only basis for appointing an interim Chairperson of ABP is the statements released by the Department since 22 November and the cabinet’s approval in principle to a change that has not been set down in detail on paper anywhere other than in the concluding line of a dull Irish Times report. Let’s see how that affects decisions made in the next few weeks.
COMPLACENT MEDIA COVERAGE
The disarray has not impinged on the public consciousness because of the usual inertia from the media which were also extraordinarily slow to pick up early stories on the scandal in the Ditch and later Village.
An example of undue journalistic deference is a piece from 29 November in the Irish Times which launders the precipitate changes as if they were planned
An example of this journalistic delinquency is the piece from 29 November in the Irish Times, under the headline: ‘Plans to allow appointment of temporary board members to An Bord Pleanála are approved Measure is part of reforms to tackle the growing backlog of planning cases’.
It launders the precipitate changes as calculated. In particular the article recounts the cabinet approval (after a draft of this article had been forwarded to the Department for reaction) of amendments to a measure (a Bill) for which it has not yet begun the legislative process, as though this was somehow “planned’ and functional. And it pretends the “measure” is “part” of a reform plan rather than an ad hoc change to its original reform plan.
The article terminates with the casual statement that the cabinet intends “to allow for a deputy Chairperson to perform any functions of a Chairperson during a vacancy”. That would, because of the need to address problems described above, demand a radical rewriting of the Bill as its substance was envisaged by the Department as recently as three weeks ago.
And, until that Bill is drafted, debated and enacted, which may take some months, Oonagh Buckley will remain only as Deputy Chairperson of ABP.
In short: it is clear the Department is in worrying disarray when a period of stability and certainty should have been provided for allowing professional and legal standards of conduct, conducive to better planning and the common good, to be identified clearly and attained in full.
THE MINISTER MUST APPOINT AN ACTUAL CHAIRPERSON
In the end, when Village put it directly to the Department that the Deputy Chairperson of ABP is not authorised to exercise the powers of a Chairperson under Section 110 (2) and 112 (1), it reduced the scope of the powers that it claimed could be exercised by the Deputy Chairperson strictly to those allowed in Section 110 (1). It was unable to claim the other important powers it had earlier mentioned.
The legal jeopardy that this move would expose ABP to is worrying of itself. However, just as worrying are what it implies about the efficacy of the Department of Housing and its judgement.
It reflects adversely on the judgement of Minister Darragh O’Brien in proposing such an unwise and frangible solution to evade the complexities of a robust appointment process under Section 105 of the Planning Act.
It also drives a coach and horses through Section 108 which says: “(3) Where a vacancy occurs or is due to occur in the office of Chairperson or deputy Chairperson or among the ordinary members, the Minister shall, as soon as may be, take steps to fill the vacancy”. The Minister is doing nothing about this “as soon as may be” but seems to be deferring at least a year until the end of Oonagh Buckley’s term.
The Department has been creditably open and patient in describing its plans to Village. Minister Darragh O’Brien has handled the ABP scandal well, apart from a predictable delay in publishing findings of multiple investigations, all of which are being spearheaded by Departmental insiders.
Presumably the Department and its Minister want time to formulate a new regime, though the authors have their doubts as to whether the Departmental and governmental intention is to embrace a vision of better – rather than perhaps worse but more voguishly expeditious — planning. The Department told Village that: “the consolidated planning bill which is currently being drafted by the AG and a team of planning experts will provide for further comprehensive changes to ABP. It is not possible to detail these changes at this point”. That is not a bad thing.
But there is nothing wrong with the existing appointment method for the Chairperson of ABP and indeed no suggestion whatsoever from any quarter that it will be changed. There will also be an unconscionable delay in appointing a new Chairperson as even the appointment of an interim Chairperson will be delayed until the new Bill is passed. There is no sign this Bill is being treated as emergency legislation though the Department has mooted that it intends to get it passed this year.
SUMMARY
Instead of the new Chairperson that was repeatedly promised, we are being offered an improvised “interim Chairperson” – which has no basis in law – as if no one will notice the lack of powers of the vacated position of Chairperson. This poses problems:
- The Department’s mechanism for expediting appointment of a new (interim) Chairperson contradicts the long-established “arms-length” appointment process in a dangerous echo of a dodgier era.
- There are legal impediments preventing the proposed interim Chairperson from exercising the full powers of the Chairperson.
- The Department has changed its stated intentions and the only thing keeping this from developing as a scandal requiring backtracking and resignations, is the complicity and continuing laziness of the media.
Speaking to Village, Social Democrats Housing spokesperson, Cian O’Callaghan, said:
“Concentrating power in the hands of the Minister for Housing will not help restore public confidence in the independence and integrity of the planning system.An Bord Pleanála was established to provide an independent planning appeals system and to move these powers away from the Minister to an independent body. Putting more and more power back into the hands of the Minister and the Department is a retrograde step”.
He pointedly noted that “it is no surprise that Fianna Fáil and Fine Gael are attempting to do this – however it is very concerning that the Green Party appear to have lost their voice”.
In the long run, this hasty and ill-considered circumnavigation will create more problems that it will solve. The Minister, having for the first time in this débacle, wrongfooted himself, should do the sensible thing while there is still time and appoint a new Chairperson in the proper way. He should move immediately to convene the interview panel whose purview remains undisturbed by any of the measures mooted. Nothing less but the public trust is at stake.
