Planning tribunal legal farce dissipates public funds and fails to address full truth

February 2015 25

WENTY years ago Colm MacEochaidh and I oﬀered a reward of

£10,000 for information leading to the conviction of persons on

indictment for rezoning corruption. I had spent a year campaigning

against a controversial rezoning of attractive ﬁelds in Cherrywood, Co

Dublin, pushed through in murky circumstances by Monarch Properties

which was subsequently found to have acted corruptly. I wanted to get to

the bottom of it. We needed to do something dramatic as a) tribunals had

been discredited following the weak Beef Tribunal report and b) there was

a perception – following an Irish Times investigation by Frank McDonald

and Mark Brennock (George Redmond’s son-in-law), billed as ‘Fields of

Gold” which had managed to name one, but only one, dead (and there-

fore defenceless), councillor as corrupt – that planning corruption was

a ball of smoke.

Our anonymous stratagem was fronted by Newry Solicitor, Kevin Neary.

He eventually received 55 separate sources of information. We threatened

that, unless immunity was granted from prosecution to whistle-blowers

and ultimately a tribunal – which we said should be cost-eﬀective and

streamlined like the British Scott Inquiry – instigated, we would start

naming the people about whom we were receiving serious and veriﬁable

information. We also introduced our informants to journalists who, once

they veriﬁed the information, printed it.

Our best informant was James Gogarty. We visited him in his house in

Sutton. He was pleasant but a little cranky, determined to nail his employer

for, as he saw it, shafting him on his pension. Gogarty had been persuaded

to go back to work for Joseph Murphy Structural Engineering – a build-

ing company, after his initial retirement. He was particularly venomous

about Joe Murphy Junior who he saw as an upstart. He was bitter that the

then Minister for Justice, Nora Owen, was not taking his claims seriously

enough and he ventilated about Seamus Henchy, a Supreme Court judge.

What he said to us about Owen, Murphy Jr and Henchy had to be taken with

a pinch of salt. But what impressed us was the information he had about

a bribe he had paid one-time Environment Minister, Ray Burke. For us it

was morally certain that the information about Burke was true, since it

was backed by documentation and had to be extracted from him, while

he really only wanted to moan on about his pension. He was disillusioned

with the failure of the Irish Times to take his story seriously and it took

some persuasion to get him to talk to any other newspaper but in the end

he spoke to the Sunday Times on the eccentric basis it was not Irish. In the

end this did not work out and he only really became conﬁdent when we

linked him to Frank Connolly, then of the Sunday Business Post.

A lot of the information we received was rubbish – one man said he

knew the burial place of racehorse Shergar but several of the allegations

resulted in criminal prosecutions or appearances before the planning tri-

bunal. The pressure built up through Neary’s appearances on the media,

Connolly’s articles in the Business Post, some pieces by Matt Cooper in the

Sunday Tribune and an article by John Ryan in Magill, ultimately made

a tribunal unavoidable, and it was duly established in 1997. In the end it

established corruption against Ray Burke and Padraig Flynn and resulted

in the resignation of Taoiseach, Bertie Ahern, who made up a cock and bull

story about a digout in order to avoid questions about unexplained sums

of around €200,000 that passed through his accounts. We never paid the

reward as no-one claimed it. The £10,000 went in legal fees.

Ultimately, the tribunal found systemic and endemic planning cor-

ruption in County Dublin. So far so good. But it had relied too much on

two whistle-blowers, Gogarty and Dunlop one of whom was sporadically

unreliable and the other of whom was serially mendacious. The judges and

lawyers who cost so much and took so long simply didn’t have the nous to

investigate the allegations presented to them, forensically.

Particularly when Judge Mahon took over from Judge

Flood the tribunal found both too much and too little.

It found mostly against those whose reputations were

already destroyed. It did not make some of the ﬁndings

that it could have made not just against Bertie Ahern but

also against many other senior serving politicians. It

also perhaps made too many ﬁndings based predomi-

nantly on the evidence of the serially dishonest Dunlop.

It did not ﬁnd a street-wise way of analysing evidence

where there was not a whistle-blower and much of its

proceedings were ill-focused. In the Cherrywood rezoning, for example,

a number of councillors had changed their minds and voted for rezoning,

after they’d been paid money by the corrupt developer or corrupt Frank

Dunlop. They weren’t even asked to explain their changes of mind though,

even before we knew that there was any corruption, campaigners had (in

1993) hammered the mysteriously-changed minds as suspicious.

Where the tribunal had failed to ask the right questions in several cases

the report simply omits the issue, including the failed line of questioning,

completely. Someone should research how much money and time was

wasted pursuing issues that were never resolved.

The judges and their legal teams fell short and were laid bare by an

admittedly over-zealous Supreme Court. That is not surprising when you

consider the same minds allowed the tribunals to go over budget and over

time. The mentality is captured by the attitude of the judges when John

Gormley, as Environment Minister, arranged for Mahon to be aided by two

other judges. When he asked the judges how much time the extra judicial

ﬁrepower would save, on the assumption they’d divide up the material to

be investigated in three, he was told that if anything it would take longer

than with one judge only, as they were going to sit together in every case. In

the end court decisions have resulted in the unravelling of all adverse deci-

sions, including against Burke, based on the evidence of James Gogarty.

In the case of James Gogarty we all knew the essence of his case was true

but that there were problems at the edges. The tribunal chose to redact the

implausible elements of his evidence but the Supreme Court said it should

have been left in, to be used against the credibility of Gogarty, generally.

But as we saw so clearly in 1995 the truth of the core of what Gogarty

said was unimpeachable. Where evidence was given about anyone who had

done Gogarty no harm, he was scrupulous. If we saw it then, the tribunal

and its overpaid lawyers should have been able to distinguish truth from

ﬁction in Gogarty’s evidence, without concealing or redacting anything.

It was the tribunal’s job to get at the truth and create distance between it

and peripheral lies.

The planning tribunal, which continues even now to clock up fees (€1.1m

last year), made millionaires of 17 lawyers, who were charging up to €2250

daily, and its own 35-person legal team is expected to ﬁnish up costing

€63m. For example Patricia Dillon earned €5.6m, Pat Hanratty earned

€5m, John Gallagher earned €3.43m Eunice O’Raw earned €3,3m and

Máiréad Coughlan earned €2.1m. Those of them who proﬀered advice

that led to concealment of evidence and Gogarty’s ﬁndings being over-

turned should know that their involvement was a scandal in itself. If they

have any professional pride they should return the bulk of their fees to

this tired so-called Republic. •

Michael Smith, editor

Planning tribunal legal farce dissipates

public funds and fails to address full truth

James

Gogarty:

honest

and reliable,

usually

FEBRUARY 2015 EDITORIAL