Housing
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• An Bord Pleanála’s manifest ethical weakness in perspective • The planning appeals board, An Bord Pleanála, has been brought into disrepute by its deputy chairperson’s property deals, by his criminal failed declarations of property interests and mishandled conflicts of interests, and by his receiverships. He must go. System of Planning Appeals The 1963 Planning Act prescribed that planning appeals from local authorities would be decided by the Minister for Local Government. An Bord Pleanála formed After years of unease with the corruptible system that resulted, An Bord Pleanála (ABP) was established in 1977 under the Local Government (Planning and Development) Act, 1976 and has ever since been responsible for the determination of appeals and certain other matters under the Planning and Development Acts 2000-2019, and of applications for strategic infrastructure development including major road and railway cases. It is an independent, statutory, quasi-judicial body. Change to system of appointment of ABP members Board members were directly appointed by the 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 members of the board, who take the decisions, are appointed by a committee chaired by the President of the High Court and selected by different interest groups. When I was chairman of An Taisce I was ex officio on the committee that appointed the chairman in 2002 and I can vouch for the thoroughness of the interview process. Mind you, the system does favour the Minister’s, or at least the Department’s, preferred candidate since the Department’s Secretary General is always a force on the committee, hosts the meetings and reads the rules. The membership of the board, which is based in Marlborough St in Dublin 1, is determined by the Planning and Development Acts. A Chairperson of the board holds office for seven years and can be re-appointed for a second or subsequent term of office. The Chairperson is appointed by the Government. ABP’s performance In 2020, the board received a total of 2,753 cases. Planning appeals (1,956 cases) accounted for over 71% of all cases received in 2020, with two-thirds of all appeals relating to residential developments. Only 47% of all appeals are taken by third parties (i.e. not developers/applicants). The chart below shows that ABP overturns local authorities’ decisions in 27% of cases, varies them in 47% of cases and confirms them in 26% of cases. It grants permission in 65% of cases and refuses it in 35% of cases. Compliance with ABP’s 18-week-decision target continued in an upward trend from 39% in 2018 to 69% in 2019, and 76% in 2020. Legal challenges Between 2017 and 2020, the number of legal challenges brought against decisions of An Bord Pleanála increased by 74%. An Bord Pleanála’s rulings were successfully challenged in 63% of High Court cases in 2020, according to the planning body’s annual report. There were 51 legal cases in 2020 and the board lost 32. ABP’s legal costs were €8.2m in 2020, more than twice the figure for 2019. The figure was similar in 2021. Legal costs scandalously account for almost half ABP’s public funding and 30 percent of its total budget. In 19 cases the High Court quashed the planning permission while in 13 cases the board admitted to defects in its decision-making process. Only 11 decisions were upheld while another eight were discontinued or withdrawn. The Bord has a terrible track record with controversial SHD (Strategic Housing Development) – large-scale residential applications which bypass local authorities. However, the percentage of overall planning decisions that are subject of legal challenge annually remains very small (only 0.3% in 2020) and only 0.07% of decisions were overturned by the courts. Financing ABP’s income in 2019 totalled €28 million. Just over €6 million, or 23%, was comprised of fee receipts. Grant funding issued from government amounted to €18.6 million in 2019. Expenditure on salaries and related costs amounted to €16.2 million, representing approximately two thirds of the board’s expenditure in 2019. It had 175.3 whole-time equivalent staff and nine board members. Expenditure on legal fees amounted to €8.2 million. The balance of expenditure of €5.4 million related to premises and other operating expenses. The surplus for the year was €2.8 million. Quality of decisions The current board is particularly pro-development. Partly this is driven by edicts, for example on height, density and small apartment sizes, which bind it. The board has always tended to apply local authority development plan standards more stringently than the local authorities themselves. This is because it is not subject to the parochial lobbyings of county councillors. For a long time that led ABP to higher standards than those of local authorities. However, since the time of former Fine Gael housing minister Eoghan Murphy and his predecessor Labour’s Alan Kelly, in particular, national standards have been lower than those local authorities would like to apply, and the era of a stringent ABP pushing an official government agenda of sustainable development has passed. Membership of board The Minister for Housing, Planning and Local Government appoints up to nine ordinary board members, including the deputy chairperson, plus the chairperson, making ten members (there is one current vacancy). Normally, board members are proposed by four groups of organisations representing professional, environmental, development, local government, rural and local development and general interests. Sometimes, one member of the board can be a civil servant appointed by the Minister. Ordinary board members normally hold office for five years and can be re-appointed for a second or subsequent term. Its Chairperson is Dave Walsh who was appointed for the period of seven years in October, 2018. He had been Assistant Secretary in the Department of Housing, Planning and Local Government, with primary responsibility for planning policy, including
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The presence of gardaí at evictions may lead tenants to believe that they have no choice but to vacate their home. By Conor Doyle. Video footage emerged last Thursday of the latest iteration of what’s become a familiar scene. Men, dressed head to toe in black, with dark glasses and face coverings (although on this occasion not balaclavas, because perhaps conveniently Covid-19 masks are now mandatory) pouring into a private residence to carry out an eviction, with gardaí present. In the video, three gardaí can be seen informing the tenants, the majority of which are foreign nationals, that they have no right to be on the property. But Garda have no function at a private eviction, except in cases where there’s a criminal act – or a credible threat of a criminal act – taking place. And furthermore reports are claiming that the eviction was illegal suggesting their primary role should have been to defend those who were victims of a serious illegality, the tenants. So why were they in fact here? The exact reason why the gardaí first arrived is unclear. Some reports, including in The Journal, claim it was the tenants that called them for assistance. A legal representative for An Garda Síochána (AGS) told The Journal on Thursday that gardaí were dispatched to the scene to “prevent breaches of the peace and ensure the safety of all persons involved” and that “no injuries occurred and no damage was caused”. When the storm of marauding and intimidating black-clad men had blown through, the tenants, eight of whom were foreign nationals, were left out on the road with their belongings. Many of the tenants had been living in the property for years. One tenant, Theresa Chimamkpam told The Irish Times that she’d lived there since 2011. She said she was “terrified” and that her home was boarded up, rendering her homeless. With the help of housing activists and solicitor Gary Daly, who’s representing the tenants, they were able to regain access to the property. Daly said there is no legal document which would form the basis for a lawfully authorised eviction. The video footage shows a man arguing with tenants, claiming that he gave notice on Facebook seven days beforehand. However of course, a message on Facebook is not a valid form of notice. And 7 days is not the appropriate notice period. Daly also said that to the best of his knowledge, the Garda were not in possession of a court order or an order from the Residential Tenancies Board to authorise the eviction. Housing activists Dublin City Housing Action told The Journalthat tenants’ belongings, including laptops, were damaged as they were being removed. Photos of further damage have since surfaced on Twitter, from Irish Times Journalist Jack Power and others. The photos show smashed toilets and walls partially torn down. If it is the case that the Garda were called to the scene by the tenants, the pertinent question is why they can be heard telling the tenants “you have no right to be here” and “as far as we’re concerned you’ve been given notice”. Especially if it’s true that they had not seen any documentation that would authorise the eviction. Last Thursday, the ICCL wrote a letter to the Garda Commissioner, asking these questions. Sinéad Nolan from the ICCL told me: “Garda shouldn’t be present unless there is a crime taking place or the very real threat of a crime. A culture has grown up in Ireland where Garda sometimes arrive at evictions to uphold public order, however this isn’t really a good legal reason to be there”. Deputy Commissioner John Twomey had called for an urgent review of the events at Thursday’s eviction. Deputy Twomey also said there’s a criminal investigation being carried out into the damage caused. The call for review seemed to come off the back of the Garda becoming “very aware of the current public discourse around an incident on Berkeley Road”. It seems their position has changed from we came to keep the peace and no damage was caused. One would wonder whether it was the “current public discourse” that caused the sudden change of stance and thus introspection from the Gardaí. “We think last week’s protest got so much attention because those tenants were well connected in activists groups and were able to access their support networks on social media etc”, Sinéad Nolan continued. “We worry there are other evictions being carried out under the radar”. This Garda introspection will come in the form of a ‘lessons learned report’ according to Deputy Twomey who unconvincingly said that the Garda is a “learning organisation”. However, this isn’t the first time the Garda have had to learn from such an incident. In 2018, the ICCL wrote a similar letter in relation to an eviction on North Frederick Street. On that occasion Gardaí could be seen wearing face coverings resembling balaclavas and protestors were evicted, with several arrested and injuries sustained. In the aftermath, Garda commissioner Drew Harris claimed that Garda had learned lessons and that balaclavas were not the correct form of dress. But modern history shows that lessons don’t really seem to be a ‘thing’ for the Garda. “What happened last week would seem to suggest that the lessons that needed to be learned, weren’t”, Sinead Nolan continued. “I mean, it’s a low bar to set but obviously it’s good that they weren’t wearing face coverings”. . Also perhaps ironically, on this occasion they should have all been wearing face coverings in the form of Covid-19 face masks, whereas only two out of the three were. The Garda claim that their attendance at these evictions is to ‘keep the peace’. However, with the damage caused last week and the injuries sustained in 2018 while gardaí were present, questions arise as to exactly what their motivation for attending these evictions is. Or perhaps more specifically, what or who they are there to protect. If information from solicitor Gary Daly is correct, it would appear that some of the Garda turned up to
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We should look to Co-operative and Cohousing solutions to the Housing Crisis caused by dependence on developers and prejudice against social housing by Caroline Hurley and Kim O’Shea THE RUMBLING by the Criminal Assets Bureau (CAB) of a dangerous gang engaged in prolonged extortion of building companies for protection, leading to High Court drama in October 2019, was the culmination of various inquiries involving Dublin City Council into accusations of illegal practices since 2016. CAB claimed well-rewarded criminals carried out anti-social acts at building sites to pressurise developers to decamp. In Drogheda, after seventy shootings and bombings in one year between feuding families, national emergency and armed response Garda have been deployed but a lack of intelligence hampers efforts. Some believe only the type of multi-agency taskforce assembled to combat similar mayhem in Limerick in the early 2000s would work now. Feuding Ennis families repeatedly fight it out with machetes, chainsaws and slash hooks. Casualties mount as the Hutch-Kinahan war extends internationally from Dublin. Parcel bombs are being tossed through letterboxes in a Killarney housing estate. With aggression escalating, bus and rail workers voted unanimously last August to strike if nothing was done about daily assaults, threats, robberies and racist insults encountered by them. 2018 saw a 7% rise in crimes categorised as anti-social, and a 50% risein anti-social behaviour orders issued, with only about 200 served nationwide Beyond those headline-grabbing examples, noise, verbal abuse, trespassing, property damage, stalking and other intrusive and disruptive behaviour frequently forces trapped, targeted householders to uproot as complaints fall on deaf ears. Violations range from vicious random attacks to insidious sinister predation. Effective legal remedies seem to exist in theory only. It’s as if afflicted residents are suddenly conscripted by faceless officialdom into an isolated full-time social-work role, with no consultation or preparation. According to the Central Statistics Office (CSO) and Garda figures, 2018 saw a 7% rise in crimes categorised as anti-social, and a 50% rise in anti-social behaviour orders issued, with only about two hundred served nationwide. Communities live in fear of fearless malfeasants. Where the nuisance is eliminated there is a syndrome of counter-threats. None of this suggests we should condone vengefulness but it does point to the futility of pursuing approved avenues of redress, given beleaguered gardaí, disempowered Councils, conflicted Courts, and meek providers of Citizens Advice, Crime Victims Helpline, and similar bodies. The most pertinent laws are: the Housing Acts 1966 to 2014, governing local authority housing; the Planning and Development Act 2000; the Residential Tenancies Acts 2004 to 2016; the Criminal Justice (Public Order) Acts 2004 to 2016; the Non-fatal Offences against the Person Act 1997; the Children’s Acts 2001 to 2017; the Control of Dogs Act 1986; the Environmental Protection Agency Act 1992 and the Courts Act 1986. An analysis of training for local authority staff dealing with anti-social behaviour, cited in a Community Mediation Works 2010 report, ‘The State Of “Anti-Social Behaviour” In Working Class Communities’, found that “training focused on ensuring that the correct legal procedures were followed”. Equipping staff with skills conducive to impartial investigations, community mediation and tenancy support were peripheral considerations. Bureaucratic rigidity seems still to prevail, though there is a greater emphasis on rights. The report criticised “housing management policies that make enabling tenant purchase the priority”, to the detriment of quality, amenities and relationships. It blamed the 1997 Housing Act for splitting anti-social behaviour into two categories: first, drug dealing, and then, serious intimidation and threatening behaviour, suggesting the latter was less important. The 2003 Norris report faulted the Act for pushing eviction without due process as the solution of choice to anti-social behaviour. While eviction is very rare now, anti-social behaviour is not. Providing only the draconian measure of summary eviction as redress for the widespread torture of peace-loving citizens is uncivic. While not dealing directly with community conflict, management could arrange “cost effective programmes proven to help families in difficulty live peaceably with their neighbours”. These measures could include mediation, family support, monitoring, liaison and above all, real tenant participation through their own organising initiatives. However, such resources are rarely made available. The Free Legal Aid Centre (FLAC)’s 2018 Annual Report drew attention to “the vague and imprecise nature of the legislation dealing with Garda vetting prior to the allocation of local authority housing and the huge disparity between local authorities in relation to the assessment of disclosures made by Gardaí and more worryingly the nature of certain disclosures being made by An Garda Síochána itself”. The lack of standards is causing social collapse. Tenants of housing associations or Approved Housing Bodies (AHBs) report much higher levels of satisfaction than those living in either the council or private sector Residents’ suggestions for beneficial amenities are routinely refused, leaving many with nothing to do but reconcile themselves to their own containment. As anger spills over, the risk of harsh measures like fines and curfews goes up, even though research by bodies like ‘Preparing for Life’ shows that humane steps including early intervention and education are what really work. A wideranging 2017 survey by the Irish Council for Social Housing discovered that tenants of housing associations or Approved Housing Bodies (AHB) report much higher levels of satisfaction than those living in either the council or private sector. Regular property maintenance, reasonable hands-on management, tenant focus and a sense of community were advantages cited. AHBs tend to have strict anti-social policies facilitating fast, effective action. An internal audit of local authorities conducted by the National Oversight and Audit Commission (NOAC) in 2017 referenced policies and procedures meant to be followed for similar challenging situations, but they are mere aspirations. The responsibility of local authorities to co-ordinate services for citizens of varying needs, in such a way as to balance the rights of all, appears diminished. The Housing Agency, whose remit is to facilitate national housing policy, has published papers by the Centre for Housing Research shedding light on approaches taken internationally to ameliorate friction between neighbours. While taken for granted
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