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interests, failures to declare interests and compromising loan write-offs; and is facing criminal prosecution and three unpublished inquiry reports.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.