By J Vivian Cooke.
The Planning and Development and Foreshore (Amendment) Bill 2022 is currently — precipitously — accelerating through the Houses of the Oireachtas. In part, it will facilitate the appointment of Oonagh Buckley as interim head of An Bord Pleanála (ABP). Village has expressed grave and detailed concerns about this process.
From July until the end of November, the Government took quite a relaxed attitude to the operation of ABP as its Chair and Deputy Chairperson resigned in turn. It is only in recent weeks that a sense of urgency has been injected into the Department’s legislative efforts. Indeed, that urgency has translated into an indecent haste and worrying vacillation. Perhaps Attorney General, Paul Gallagher, is conscious that he is about to be replaced and is zealous in his determination to get this Bill passed before then.
The Department has changed its mind, changed its explanations and changed its plans with a bewildering frequency. And still, at this stage, there are more changes expected and announced.
It is helpful to put the key events in sequence.
Second half of 2021 – (following much chat of how the AG is determined to effect necessary changes) – Work begins on a comprehensive Bill to reform the Irish planning system
8 July 2022 Paul Hyde resigns as Deputy Chairperson of ABP following a debacle.
Casual vacancies in the position of Deputy Chairperson can be filled by the Minister where he directs that an ordinary member of the board should be Deputy Chairperson.
3 October 2022 Office of the Planning Regulator publishes its report on phase 1 of its review of ABP.
4 October 2022 Department of Housing publishes Action Plan in response which lists:
individual actions to reform ABP.
Cabinet approves Action Plan.
The Cabinet does not approve any legislative changes but, rather, allows the Department to begin drafting the PDF Bill to translate the Action Plan into a new statute.
3 November 2022 David (Dave) Walsh announces his intention to retire as Chairperson of ABP.
This adds a vacancy in the position of Chairperson to the vacancy in the position of Deputy Chairperson which, if unaddressed, would lead to the ordinary business of ABP grinding to a halt.
In response to Walsh’s resignation, the Department announces:
“Minister O’Brien will now move swiftly to initiate the process of appointing a new Chairperson and will also appoint a Deputy Chairperson as provided for under the Planning and Development Act, 2000”.
Clearly the intention at that time was to make two appointments. Under the current legislation, a casual vacancy in the position of Deputy Chairperson can be filled temporarily by a Ministerial appointment. However, the law does not provide for the appointment of a temporary or interim Chairperson and the vacancy created by Walsh’s retirement can only be filled by an appointment made through the process laid out in Section 105 of the Act.
9 November 2022 General Scheme of the Planning and Development and Foreshore (Amendment) Bill 2022 is published. This document contains only four Heads of Bills to reform ABP that amends:
- Section 104 (1 – 3) in order to increase the number of board members to 15 and allow the Minister to make further additions if required in future;
- Section 106 to change the method of appointing ordinary board members to replace panel composed of civic society bodies with an interest and expertise in planning with a committee appointed by the Minister to assist him in making appointments;
- Section 108 (1) (A – D) by increasing the quorum of the board acting by division from 2 two 3 members; and
- Section 110 (2) to change the grounds on which the Chairperson can investigate ordinary board members for misconduct and allow the Minister to seek a report from the Chairperson into suspected misconduct.
The General Scheme makes no new provision for either an interim Chairperson or accelerated building of social and affordable housing.
10 November 2022 Joint Oireachtas Committee on Housing, Local Government and Heritage hears submissions as part of the Pre-Legislative Scrutiny of the Bill.
In its submission, the Department notably does not mention its intention to legislate for an interim Chairperson or for the accelerated provision of social and affordable housing.
No indication is given that the government will unleash emergency procedures to secure the passage of the Bill before the Christmas recess.
22 November 2022 the Minister announces that Oonagh Buckley will be appointed interim Chairperson of ABP.
He issues a statement that:
“(T)he appointment of Ms. Buckley as an 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 and further forthcoming amendments through the Planning and Development and Foreshore (Amendment Bill) 2022.”
This is a clear departure from the intention on 3 November to make two appointments – a Chairperson and a Deputy Chairperson.
In addition, it is clear that the Minister intends to fill the post of Chairperson, at least on a temporary basis, without using the appointment mechanisms required by Section 105.
Moreover, the statement prompts a number of queries as no timeframe for Buckley’s appointment is given and so it is not clear when, how and in particular under what legal authority Buckley will be appointed interim Chairperson. Current legislation only allows for the appointment of a Deputy Chairperson for a period of 12 months and the details of the Bill as outlined by the Department to this point makes no mention of an interim Chairperson.
28 November 2022 The Department of Housing confirms that:
“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) perform the Chairperson’s functions Section 110(1) functions as Deputy Chair 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.
The Planning and Development and Foreshore (Amendment Bill) 2022 will provide for Ms. Buckley, as Chairperson, in an interim capacity, to carry out all the functions of Chairperson”.
The Minister is seeking to make appoint a new Chairperson of ABP without using the appointments process required by law and intends to regularise the situation once the Bill becomes law, whenever that might be.
The sequence outlined indicates the intention that Buckley will be appointed under existing legislation before the PDF Bill is passed.
The Department believes that an appointment under the existing legislation allows a Deputy Chairman, when there is a vacancy to discharge the functions of a Chairperson under Section 110 (1) but notably it does not claim that a Deputy Chairperson is permitted to carry out investigations or assign business to divisions of the board under Sections 110 (2) and 112 (1) (a) respectively.
This is the first mention that the Bill will include an amendment to create the post of interim Chairperson.
29 November 2022 Cabinet approves that Minister O’Brien make amendments to the Bill.
These, among other things, allows for the creation of the position of interim Chairperson and provide for exemptions to planning regulations to accelerate the provision of social and affordable housing by local authorities.
29 November 2022 Minister writes to the Leader of the Senate, Regina Doherty to move and pass the PDF Bill through the Seanad by the week ending 9 December.
This marks another change in intentions as, contrary to the statement only the day before, the Government will now only appoint Buckley after the Bill has passed.
It is also clear that, on 28 November, the Department intended to rely amendments that had not actually been approved by the cabinet.
The government is seeking Seanad time to rush through legislation that it has not even published and which it has not completed drafting.
This marks a juddering change of gears for the pace at which the government wants to pass the PDF Bill. The Minister says that the dysfunctionality in ABP and the housing crisis need immediate action, but there is no explanation why he reaches this conclusion today and not at any time before when these crises were evident for some time.
1 December 2022 Text of the Bill and accompanying explanatory memorandum are published.
This includes the full legislative text for the amendments to Sections 104, 106, 108, 110 (2) that were proposed in the Heads of Bills on 9 November.
The Bill now includes substantial new provisions that had not been mentioned previously that amends:
- Section 104 (4) to allow the Minister to appoint former civil servants and anyone he thinks is qualified as additional ordinary members on a temporary basis;
- Section 105 by inserting a new provision that allows for the appointment of an interim Chairperson for a term not exceeding 12 months;
- Section 107 to create a new legal basis by which the Deputy Chairperson can perform all the functions of the Chairperson in the event of a vacancy; and
- Section 108 (4) (A) to allow the Minister to fill casual vacancies among the ordinary members of the board with former civil servants and anyone he thinks is qualified and removes the limit of 12 months for such appointments.
It is now clear that the Bill seeks to grant even more discretionary powers of appointment than previously indicated in the General Scheme. Where previously there was a legal requirement for ministers to appoint officials serving in the Department, the amendment creates the potential to repeat the dodgy practices of corrupt former Minister Ray Burke who stacked the board with his cronies including his constituency chairman. It is extraordinary that after all the controversy over Hyde and Walsh the lesson has been inferred that less scrutiny and scrupulousness should inform ABP’s future than before. Perhaps it is because the Bill is animated by conceptions reached before the ABP controversies by an activist and zealous Attorney General. In passing it is worth noting that those animations remain unpublished though it had been reported that the Attorney would put his thoughts in print months ago.
The Bill remedies the lacuna in the legal authority for the Deputy Chairperson to assume the functions of the Chairperson, but this must be taken as an acknowledgement that the proposed appointment of Oonagh Buckley on 22 November as confirmed on 28 November would not have allowed her to fulfil the role of interim Chairperson.
Except, the Minister states that he intends to introduce amendments to the text at third sage. In its rush to get the Bill passed before the demise of the exiting, energetic Attorney General and the Christmas recess, the Department is initiating a bill in the legislature, the text of which it has not yet finished drafting and is proposing to amendments to its own bill with provisions that are not written let alone approved by the government. Later, in the Seanad, on 6 December the Minister states:
“I wish to advise that I am working with the Attorney General to develop an amendment to be tabled on Committee Stage to provide in defined circumstances for the accelerated delivery of social or affordable housing on local authority or other State lands that do not require an environment impact assessment, EIA, or an appropriate assessment, AA, for a defined period. The precise criteria underpinning this provision are subject to final technical amendment by the Office of the Attorney General”.
Every part of this statement impels cause for great unease.
First reading of the Bill in Seanad.
2 December 2022 Department officials provide their first briefing of the Bill to legislators.
5 December 2022 The Department provided further briefings to Senators who are expected to vote on the proposals the next day.
6 December 2022
11:00 deadline for receipt of amendments from Senators to the Bill at second reading
12:00 Joint Committee finalises its Pre Legislative Scrutiny Report
13:45 Second Reading of the Bill in the Seanad
The Joint Committee does not have an opportunity to make recommendations and observations on the legislative proposals, the submissions, including the Department’s own submissions, made during the Pre Legislative Scrutiny process, are ignored, and everyone’s time and effort in the process has been wasted.
The Seanad is only given an hour and forty-five minutes to debate the parts of the PDF Bill that are ready. All the Department’s final text for the sections providing for planning exemptions that will accelerate the provision of social and affordable housing is not finalised and will only be seen by Senators at committee stage.
Only six senators are allowed time to make contributions and they all lament the fact that this legislation is being rushed before the Pre Legislative Scrutiny Report is finalised.
Government Senator, Pauline O’Reilly, (Green Party) says, in any event, she does not believe that the legislation will have finished it passage through the Dail by the 17 December so there will be more opportunities for additional scrutiny when the Bill returns in the New Year.
Undeterred, the Minister notes that yet more legislation will be forthcoming as he intends to bring a comprehensive bill to reform planning legislation to cabinet for approval on 13 December, and that will provide an opportunity to remedy any oversights or errors that might slip through in the PDF Bill.
The Minister promises that the Oireachtas definitely will be provided with adequate time to scrutinise and debate the next Planning Bill.
Senator Rebecca Moynihan makes the point that the previous Planning Bill, the Planning and Development and Maritime Valuation Act was rushed through the last weeks before the summer recess in July 2022.
The Bill passes its second reading in the Seanad and is scheduled to begin its committee stage on 8 December by which time, the Minister promises, the Attorney General will have finished drafting and the cabinet will have approved the full text of his amendments which senators will then scrutinise for the first time, however briefly, before voting on it.