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    Over 17,000 dwellings stuck in judicial review system, property group tells Minister

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    By Conor O’Carroll. More than 17,000 dwellings are currently stuck in the judicial review process, according to property group Irish Institutional Property (IIP). The figures were shared with Minister for Housing, Darragh O’Brien in November last year as part of a submission made by the lobby group in relation to the Planning and Development Bill 2023 and subsequently released to Village Magazine. The vast majority of these dwellings are located in Dublin, with close to 14,000 subject to judicial review and a further 1,975 located in the Greater Dublin Area. The next highest locality is Cork, with 285 dwellings, followed closely by Galway with a further 223. The remaining cases are spread across the country. IIP highlighted some of the cases that are currently stuck in the system, including a 416-home development “on an inner Dublin canal brownfield site designated for strategic redevelopment”. Planning permission for this development was granted in 2020 and has been upheld “following five High Court judgments and a reference to the Court of Justice of the European Union”. The case is now with the Supreme Court awaiting to be heard “on an emergency basis”. Another development, also in Dublin, includes 191 homes in Dún Laoghaire granted permission in 2021. The date for the judicial review case is still pending and may be subject to further appeal or reference to Europe, which IIP say would cause another delay. Figures from An Bord Pleanála show that 95 applications for judicial review of planning decisions were made to the High Court in 2022, a joint record tied with 2021. The planning body also spent almost €10 million in legal fees in 2022, up from €7.6 million the year previously. Of the 20 substantive cases heard during 2022, An Bord Pleanála won 11 of them, however, they also conceded 35 cases over the course of the year while a further 14 cases were either withdrawn or discontinued by the applicants. The number of applications has close to doubled since 2017, when Strategic Housing Developments (SHDs) were introduced. These SHDs have been criticised for contributing to the problem, as they bypass the normal planning process of governed by local authorities and are decided directly by An Bord Pleanála. The vast majority of these dwellings are located in Dublin, with close to 14,000 subject to judicial review and a further 1,975 located in the Greater Dublin Area A recent report from construction consultancy firm, Mitchell McDermott, found that over 8,000 of these SHDs are being held up by judicial reviews. However, the report also found that plans for over 20,000 SHD homes are awaiting a decision from An Bord Pleanála and that a further 31,000 homes have secured planning permission but have yet to commence construction. IIP says the delays caused by judicial reviews puts pressure on the construction industry to complete the approved developments before the time limit on the planning permission runs out. With the standard duration of planning permission lasting 5 years, multi-year delays can leave the developer with an impossible task of construction, requiring an extension to permission. The new Planning and Development Bill, which was published in full shortly after the submission from IIP, substantially reforms the judicial review process, including a fast-track process aimed at hearing cases quicker and changing who can bring forward judicial reviews. Figures from An Bord Pleanála show that 95 applications for judicial review of planning decisions were made to the High Court in 2022, a joint record tied with 2021. The planning body also spent almost €10 million in legal fees in 2022, up from €7.6 million the year previously Under the provisions in the Bill, constraints have been placed on residents associations that will limit their ability to appeal decisions. These groups will be prohibited from launching a judicial review unless they have a constitution and a two-thirds majority vote to bring a judicial review to court. The names and addresses of those who voted in favour will also be submitted as part of the court documents. These limitations will likely reduce their ability to challenge decisions, such as in 2020 when a development of 657 residential units in Raheny, Dublin was halted following an appeal to the High Court. Judicial review applicants will also need to have “exhausted any available appeal procedures” before a case can be brought before the courts. Environmental NGOs have also been hamstrung in the reforms, with requirements placed on them to fulfil obligations such as being a company with more than ten members before they are permitted to bring a case. Critics of the Bill say that these changes to the judicial review system are designed to scare local groups from contesting planning decisions and restricts the fundamental right of citizens to hold the government to account. The Bill commenced the Committee stage of the legislative process last week.

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    Consistency and speed to the detriment of Quality and Sustainability

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    The hands of former Attorney General Paul Gallagher and of the property industry are all over the Planning Bill By J Vivian Cooke The Planning and Development (Amendment) Bill, 2022 The Planning and Development (Amendment) Bill, 2022 attempts to bring clarity to the legal underpinnings of the planning system which are currently scattered across numerous laws, regulations, and court decisions (at both national and EU levels). Historical balance between central and local government The history of planning legislation is of a balance between centralised powers, typically emanating from the Minister and latterly from the Office of the Planning Regulator (OPR); and local authorities’ powers, which in turn have been divided between officials’ and elected councillors’. Too often powers exercisable at either a centralised or local level, have simply not been exercised properly, and many would say local government has not justified the trust that underpins the delegation of such powers as planning permission (in officials) and zoning (in elected councillors). The Bill is a significant salvo at taking back some of the powers of local authorities by requiring their deference to centralised standards. Whether the requirements will be observed by headstrong local authorities remains to be shown. Equally uncertain is the appetite of the OPR to exercise zealously its powers or of any Minister to sanction councillors in a delinquent local authority who might be party colleagues. Long-standing and egregious failures of planning, including the sprawl of Dublin and one-off housing, have been largely perpetrated in contradiction to national policy due to enforcement inaction rather than action, with such consistency that it must be deemed to be policy inaction. Unclear if local authorities will defer to the centralisation The Bill carries forward the often-unenforced logical impetus of the existing system. It is based on a clear hierarchy for strategic planning and policy in which subsidiary plans are obliged to be materially consistent with all policies that are above them in the hierarchy. The hierarchy descends from National to Regional to Local Authority to Local. Under the Bill, the Minister will set out certain aspects of important policy in National Planning Statements which contain directives that purport to be binding, termed National Planning Policies and Measures (NPPM). The history of planning legislation is of a balance between centralised powers, typically emanating from the Minister and latterly from the Office of the Planning Regulator (OPR); and local authorities’ powers, which in turn have been divided between officials’ and elected councillors’ New planning procedures Regional assemblies must draft Regional Spatial and Economic Strategies (RSES) that are “materially consistent” (the term is significant: “comply with” would have been stronger, requiring, as it does, positive action) with the specific directives in NPPMs, and support overall government goals; while both national and regional documents aim to coerce often recalcitrant local authorities in their individual Development Plans which drive the planning permissions they issue. The Bill sets out a process common for all actions provided for in law which, the drafters fear, might not necessarily be observed in the political process. Each individual step, in both policy drafting and permission-decision-making, is explicitly laid out in comprehensive step-by-step detail. The requirements for consultation, notification, review, compliance, appeal and deadlines are all stipulated in statutory process maps. Within these policy constraints, local authorities can, as now, give effect to national standards in ways that they deem appropriate to local circumstances; this may be valuable in preserving the democratic legitimacy of the planning process and, in addition, because local authorities have better knowledge of conditions on the ground. Compliance and Enforcement Errant authorities, whose subsidiary document diverges from a higher-level policy instruction are legally obliged to amend their policy documents to take such steps as are necessary to make it materially consistent with national, regional or local standards. Moreover, coherent planning objectives are pursued by obliging regional and local plans to have an internal, or horizontal, consistency with the authority’s other formal policy documents in areas such as housing, transport and climate action. It remains to see what will happen if authorities fail to amend as required. The longstanding experience has been that correcting the flouting of such directives inevitably depends on intervention by the often-reluctant OPR or by beleaguered individual litigants. The Bill maintains the current status of OPR enforcement actions against local authorities which are recommendations to be implemented at the discretion of the Minister, but they probably should be changed to be mandatory. This legislative review project has been misled from its conception by exclusively focusing on the wrong goals – consistency, efficiency and speed. A legal obligation doesn’t necessarily lead to compliance. It would, for example, be better if a standing body — the powers of the OCR could be increased — were to be charged with — and employed personnel who were scrupulous and determined, indeed passionate and fired up about — taking action to enforce compliance. And if the standing body were properly funded. It would ensure that local authority development plans and individual planning decisions complied with planning policy. This is what was envisaged in the recommendation from the Planning Tribunal to establish a Planning Regulator. Unfortunately, lobbying means that we got a regulator for propriety but an advisor for compliance.Much of the Bill is a reiteration and refinement of the existing approach to planning rather than a radical new departure. However, some proposed changes have the potential to create difficulties. Locus Standi for Individuals and Limited Companies If the Bill works in practice, developers will know better, before submitting a proposal for permission, by what standards their proposal will be judged and by when a definitive decision will be made. The building industry has, largely self-servingly, identified inconsistent planning decisions and the threat of legal challenges as a major obstacle to designing and financing urgently needed new private residential developments and, through extensive lobbying, appears to have convinced the Department of Housing of this spurious argument. Too much of the adverse comment that the Bill has been subjected to has focused

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    Ourland

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    The return of the Irish economy is not an accident. The fact there were no riots when in collapsed in 2008 in a sea of imploded vested interests was no happenstance. The fact this country has divided power since its instigation between Fianna Fáil and Fine Gael wasn’t just luck. The repetition of the failures of the national spatial strategy in the National Planning Framework was predestined. The failure of any party to take on the rights of property and make them subject to the common good isn’t a random thing, it’s determined. This country isn’t Germany which went through industrialisation, Nazification and deNazification, and learnt that politics and the common good is a serious business. Nor are we like the US which takes itself so seriously that it can elect a politician on an America First platform, elect someone who’s utterly wrong about everything. Or the UK which tossed a reputation forged over a millennium for empirical pragmatism into the fires of Brexit because it had a serious gripe with Institutional Europe (and Johnny foreigner). Ireland lost half of its people in the famine five generations ago. There is a strong folk memory of apocalypse which imbues a national fear that workaday issues aren’t important, that politics doesn’t really matter, that anything good is transient, that there’s no point planting a tree, a flower. We also suffer from the residual malaise of the colonised. For 700 years decisions were taken not in the common good but in the interest of an alien political entity. Service for the government and its establishment was not service for the common good. This country is sceptical about the motivations of its politicians, and its politicians do not see their roles as ethical or principled. This can generate corruption. We also suffer from the overhang of over a millennium of pious religious adherence though arguably we are overcoming that fast, almost – though not quite – too fast. Ireland is not a serious country like Germany. Yes we’re big on the GDP that every country wants. Certainly, we can do capitalism if you ask us too, but it’s only because that’s a doctrine that depends on an independent competitive detachment. You don’t have to buy in to anything particular to practise capitalism. We’re good at giving international commerce and its IT companies and vulture funds what they want: from planning permissions to an utterly unethical system of corporate taxation. You never hear anyone in public life talk of morality or ethics, you rarely hear mention of the public interest or the common good. Or philosophy: we’re sort of middlebrow. It is taken for granted that the combined private interests of all somehow amounts to the public interest. It is assumed the needs of the present outweigh concerns for the future. We don’t have a language for ugliness even though we forge it everywhere. We don’t care about planning, we couldn’t give a fiddlers for the environment. We’re the worst climate-change offenders in Europe, one of the few EU countries to miss its 2020 emission reduction targets under the EU effort-sharing decision, the worst per person in Europe. We love to litter. We’ve filled the countryside with unsustainable houses, allowed Dublin to leapfrog into much of Leinster. We’re going continue doing it. It would be draconian to tell anyone they can’t actually build somewhere. Climate, the environment and planning are at the sharp edge of our psychological weaknesses. We understand when someone fleeces the public purse – sure we’d do it ourselves. Even the parties of the left can’t bring themselves to support a property tax. For that would impinge on “the family home”. Does Richard Boyd Barrett not realise that that phrase betrays a millennium of weakness? Strangely we never hear that other assets shouldn’t be taxed – that stocks and shares shouldn’t be taxed because they’re “the family portfolio” but mention the family home in Ireland and a ‘Land League’ and a host of people who don’t realise they’re not leftists will come running to your aid, in your home or in the courts, even if you’re looking to remain in a gilded mansion, even if you have three homes. Charlie Haughey, Bertie Ahern, Enda Kenny, have been replaced with shiny new faces – Leo, the Simons, Eoghan. These tyros may have had radical, progressive or interesting ideas before they got into politics but it’s not an accident that they get beaten out of them by the time they stand for election, for the party. They’ll toe the party line, not the thinktank line on everything from housing to the drugs crisis to healthcare. They bought into Fine Gael (it might as well have been Fianna Fáil) atavistically. Sit on a bus in England or the US and the quality of the conversation overheard (‘innit?’, ‘So I’m Like’) shocks and bores. Not here. You’ll never meet a complete moron in Ireland. The left may not yield a property-tax agenda but then again the right hasn’t managed to muster much of an anti-immigration or even privatisation agenda. Most Irish people have lots of common sense, a fairly global outlook, a sense of humour and a cultural hinterland of some sort. Ireland isn’t serious enough to keep its quality of life as high as that in countries where the common good is the transcendent driver. But then again it’s not serious enough to say no to gay marriage – sure everyone likes someone who’s gay. Or serious enough to elect a Fascist or a tub-thumper. Ireland is a peculiar place. It’s not the worst place. But its history holds it back, and will for generations to come.

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    Oxymoron

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    By 2040 we expect that an additional one million people will live in Ireland, an additional two-thirds of a million people will work here. An ageing population and smaller family size mean that we will need an additional half a million homes to accommodate this growth. Project Ireland 2040 purports to address this. It consists of the National Planning Framework which sets out a spatial strategy for Ireland, to accommodate in a “sustainable and balanced” fashion these significant demographic changes. It is the overall Plan from which other, more detailed plans including city and county development plans and regional strategies will take their lead. Learning from past experience, the NPF is backed up by an infrastructure investment programme, the National Development Plan. This National Development Plan sets out the significant level of investment, almost €116 billion, which will underpin the NPF and drive its implementation over the next ten years. €91 billion in Exchequer funding for public capital investment has been allocated and will be supplemented with substantial investment by commercial State Owned Enterprises. This increased level of resources is expected to move Ireland close to the top of the international league table for public investment, from a low post-crash base. In short, the State’s infrastructure investment – the money – should be guided by and follow the Plan. That is what makes Project Ireland 2040 different and a significant innovation in Irish public policy. What is not different is that it does not have teeth, particularly to stop market-driven development that is incompatible with the vision. Project Ireland 2040 is about enabling all parts of Ireland to achieve their full potential. It seeks to move away from the current, developer-led, business as usual pattern of development, to one informed by the needs and requirements of society. This means seeking to disrupt trends that have been apparent over the last fifty years and have accelerated over the past twenty. It purports to aim to ensure that rather than have excessive population growth focused on Dublin – as is the current trend – that 75% of all population growth occurs in the rest of the country.The immediate priority is to increase overall housing supply to a baseline level of 25,000 homes a year by 2020, and then a likely level of 30-35,000 annually up to 2027. 112,000 households are expected to obtain social housing over the decade. A new €2 billion Urban Regeneration and Development Fund will aim to achieve sustainable growth in Ireland’s five cities – Dublin, Cork, Limerick, Waterford and Galway – and other large urban centres, incentivising collaborative approaches to development by public and private sectors. It aims to secure at least 40% of future housing needs by building and renewing within our existing built-up areas, whether they be in the many villages and towns in need of regeneration or in our cities and larger towns where there are also huge opportunities for city and town centre regeneration. Of course the corollary of this is that an unsustainable 60% of future housing need will be met on green-field sites. It targets a level of growth in the Northern and Western, and Southern, Regions combined to at least match that projected for the East and Midland Region. It will support the future growth of Dublin as Ireland’s leading global city of scale, by better managing Ireland’s growth to ensure that more of it can be accommodated within and close to the city. It supports ambitious growth targets to enable the four cities of Cork, Limerick, Galway and Waterford to each grow by at least 50% to 2040 and to enhance their significant potential to become cities of scale. It recognises the extent to which Sligo in the North West and Athlone in the Midlands fulfil the role of regional centres. It recognises Letterkenny in the context of the North-West Gateway Initiative and Drogheda- Dundalk in the context of the Dublin- Belfast economic corridor. It seeks to strengthen our rural fabric, by reversing town/village and rural population decline, by encouraging new roles and functions for buildings, streets and sites, and supporting the sustainable growth of rural communities, to include development in rural areas. That’s one- off housing. Anyone who follows this will see that there’s not much sense of anything being ruled out, and indeed almost everything seems to be ruled in. That suggests it won’t all happen. And the determinant of what happens and what doesn’t will, as usual, be the market – which will skew to Dublin and its hinterland, and of course one-off housing whose site costs are negligible (for those lucky enough to own rural land) but which pose difficulties for sustainability: economic, social and environmental. It costs more to service far-flung housing with broadband, and everything else. One might quibble with elements of the plan. Dr Edgar Morgenroth – Professor of Economics at DCU and a primary author of the document – said that plans for the €850m motorway between Cork and Limerick would undermine the proper growth of “second tier” cities in Ireland. He rejected claims by An Taoiseach Leo Varadkar that the motorway would encourage the cities to grow faster saying it would instead lead to sprawl. He told ‘Morning Ireland’ it was important “to put the infrastructure into the cities, not between them”. “Once you put the motorway between two cities what you’re doing is getting more sprawl. So you’re undermining your own strategy”, he said. Morgenroth also said that building a new motorway undermined a commitment by government to reduce carbon emissions. The NPF will also have “statutory backing” overseen, quasi-independently, by the new Office of the Planning Regulator (OPR) – a key recommendation of the Mahon Tribunal.   Unfortunately this particulator Regulator will not regulate but rather advise others whose motivation may be political and short-termist. A regulator who does not regulate. There has been much light-free heat, led by Sinn Féin which even claimed to be seeking a legal opinion, about the failure of the government to put the NPF to a parliamentary vote but instead to include

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    Galway Sprawlway

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    Around one hundred submissions were received by Galway’s City Council on its Draft Development Plan 2017-23 by the deadline of 5 October. Meanwhile, a number of well-known community and environmental activists in Galway City have come together to form a new alliance to promote a ‘Future Cities’ concept based on “regenerative urban development, ‘green’ living, smart technologies and a sustainable transport. They have a lot on their plate. It’s a planning and transportation mess with no visionary Messiah. In many small cities comparable in size to Galway, people are regenerating and humanising their urban environments by introducing woodlands, gardens, recreational parks and city-wide 24/7 cycling, walking and public bus or train systems. Yet here in Galway City we are now proposing to build the N6 ringroad that will cut through homes, villages, neighbourhoods, farmland, key wildlife habitats, a university campus and sports elds, and lead to further mindless urban sprawl of this, in so many ways, creative city. Then, having spent €700m on a new road, there will be no incentive or money left to introduce the Public Transport improvements being promised “after the road is built”. If Galway City is to have a sustainable future, the authorities should immediately bin a policy based on a discredited ‘predict and provide’ private car-based transportation model and instead should use the available €500-750m to construct a hierarchical transport model based on a ‘new mobility’ prioritising pedestrians, cyclists and users of public transport”. When the IDA first developed its business parks at Parkmore in the early 1970s there were very few businesses initially established out that far. So having only one main entrance avenue wasn’t a problem. In the intervening years the estate has exploded so it now accommodates many of the world’s leading medical device and IT manufacturers. With very little available public transport passing, let alone actually entering the estate: the sheer number of private cars coming in has now reached crisis point. Yet Galway Co Council actually gave permission for a new sub-standard entrance/exit point and junction giving the planning board no choice but to refuse permission. In September An Bord Pleanála duly reversed the permission because “its construction would endanger public safety by reason of traffic hazard”. This decision could, should, force debate about the much larger can of worms around Ireland’s lack of a ‘sustainable’ National Spatial Strategy’. The daily traffic chaos in Parkmore is a symptom of the much wider problem we have in historic spatial planning in Galway, with rapidly increasing numbers of people having to commute from their new homes in County Galway to their workplace in the city, by car. This phenomenon has become overwhelming over the past 40 years. Workers living in the city but working in Parkmore/Ballybrit have been failed by the lack of civic imagination that might have provided an adequate public transport system in the city. For a youthful and fashionable city, capital of ‘craic’, dubbed as progressive, and once crowned ‘the fastest growing city in Europe’ this is anachronistic. In its May 2014 Newsletter, the Western Development Commission – using an IDA case-study, stated that “of the 16,701 rural dwellers commuting to work within the gateway of Galway city, one quarter (25.6% or 4,285) commute to work in the IDA estates”. The first figure refers not just to people heading in to Ballybrit, Parkmore and Galway Technology Parks, but others who commute further still into the heart of Galway city, for work at GMIT, NUIG and UCHG, our largest city-centre employment nodes. As James Wickham said in his book ‘Gridlock’: “Car dependency is an issue for social policy. Car dependency exacerbates social exclusion, for those who do not have a car run the risk of being excluded from normal life. Their access to jobs is restricted, they find it difficult to move around the city, they are not full citizens”. There is a belief that transportation problems result from the antedeluvian planning policies of the 1980s and 1990s, both at local and national level. These intensi ed in Galway from the time Colin Buchanan and Partners published its ‘Galway Transportation and Planning Study’ in September 1999. This report together with its subsequent 2002 ‘Integration Study’ commissioned jointly by Galway City and County Councils, led to a situation in Galway, not dissimilar to that of Dublin, where availability of sufficient reasonably priced housing units in the city failed to keep up with growing public demand. This, combined during the madness of the Celtic Tiger years, with pressure being applied by county councillors and developers turned Galway’s surrounding towns, villages and particularly countryside into worker dormitories: for families that had been priced out of continuing to live in Galway city. The Galway County Development Plan of 2002, which integrated the recommendations from the Buchanan Report, facilitated development in places ringed around the city: Bearna, Moycullen, Claregalway, Tuam, Oran- more and Athenry. And everything in between. Responding to Galway County Council’s then- Draft Development Plan in July 2002, then City Manager John Tierney wrote to Donal O’Donoghue, then County Manager, expressing some concern over proposed policies which would continue to promote a wider spread of settlement, and not the concentration into the 38 towns, villages and proposed development at Ardaun that had been planned. He stated: “The cumulative effect of these policies/objectives all greatly undermines the ‘Galway Transport and Planning Study’ GTPS, any sustainable approach to a settlement structure and consequently any ability to promote a sustainable public transport system. It would exacerbate the current dependence on private vehicular transport and the consequent negative effects of this”. Tierney’s pleas went ignored, and widespread ‘one off’ housing development in County Galway continued unabated, with septic tanks mushrooming leading to water pollution, cryptosporidium, and a culture of lengthy commutes into once homely Galway City. So a long-term strategic policy for planning where people might be sustainably housed was scupperedd, due to the regime, the report and thousands of concomitant individual acts of planning anarchy, cumulatively undermining any regional strategy. The problem is now self-pepetuating and solution-less.

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    Done gall

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    Former County Manager of Donegal, Michael McLoone, is continuing with his High Court proceedings for defamation against Village. In 2014 the magazine printed allegations which it claims were both true and contained in an affidavit opened in court proceedings, by former Donegal senior planner, Gerard Convie, an employee of Donegal County Council for 24 years. McLoone claims he has been massively defamed. Meanwhile Convie’s allegations are being assessed by a senior counsel appointed by the Department of the Environment. Convie has consistently, in court and elsewhere, claimed that during his tenure there was bullying and intimidation within the council – of planners who sought to make decisions based exclusively on the planning merits of particular applications. He claims one councillor constantly referred to him as a “wee shit from the North”. In the opened affidavit, Convie alleges McLoone: 1. Recommended permissions that breached the Donegal County Development Plan to an extent that was almost systemic 2. Submitted planning applications to Donegal County Council on behalf of friends and associates 3. Dealt with planning applications from submission to decision, including some from friends, family and associates 4. Ignored the recommendations of planners 5. Destroyed the recommendations of other planners 6. Submitted fraudulent correspondence to the planning department 7. Forged signatures 8. Improperly interfered as described in a number of planning applications 9. Was close to a number of leading architects and developers in Donegal, including the head of the largest ‘architectural’ practice in Donegal, with whom he holidayed but the relationship with whom was undeclared. Convie made a number of complaints dating from 2006. He had a list of 20 “suspect cases” in the County. As he later reverted to private practice he claimed to have discovered many more, perhaps hundreds, “a cesspit”. In 2006 he complained to the Standards in Public Office Commission (which ruled the complaints out of time). That same year the Council sued Convie for his allegations, but dropped the proceedings after a fractious four years, without any damages or costs award. In another case McLoone won damages from a local newspaper which had printed some of the allegations but which did not fight the case in a full hearing. Following complaints from Convie after the Greens got into government Environment Minister, John Gormley, announced ‘planning reviews’ in 2010, not of corruption but of bad practice – in seven local authorities including Donegal. Convie’s case studies comprised all the material for the review in Donegal. But when the new Fine Gael and Labour government took over they very quickly dropped the independent inquiries. A lazy 2012 internal review by the Department of the Environment stated of Donegal – according to Minister Jan O’Sullivan in the Dáil, that: “… the complainant [Convie] has failed at any stage to produce evidence of wrong-doing in Donegal Council’s planning department”. Convie felt this left him in an invidious position and he successfully sued. In the High Court Order, all the conclusions by the Minister were withdrawn and an apology issued. Counsel on behalf of the current Donegal County Manager, Seamus Neeley, objected to the decision as it did not know why the case had been settled, though Convie’s barrister noted that the Council was a notice party that had played no active part in the case. There appear to have been no ramifications for the civil servants who concluded that Convie’s complaint did not constitute “evidence”, less still for the ‘progressive’ Minister who accepted the conclusions. The government was forced to reinstate the planning enquiries and found maladministration but not any sort of corruption in the cases outside Donegal. After the ‘RTÉ Investigates’ programme which apparently uncovered examples of corruption in planning last year, the government sheepishly announced a package of ‘radical’ planning measures which included the belated publication of the independent review which uncovered considerable evidence of malpractice throughout the planning system and includes 29 recommendations to improve “standards of transparency, consistency and accountability” which the Department says it will implement. The Convie file was referred to the Attorney General for direction and in the end senior counsel, Rory Mulcahy SC, was appointed to look into it. Convie by all accounts engaged with Mulcahy over the issues which were the subject of the complaints, but has now withdrawn from the process. Mulcahy has spoken to the Council and informed Convie that he would be seeking to interview other relevant parties. He is around half way through the exercise. In February this year Alan Kelly, the then Minister for the Environment, claimed, “this independent process underway remains the priority of the Minister, his Department and his officials”. However, though in general content with the process – which being non-statutory is precariously ‘open-ended’, Convie has some particular concerns. He considers the Minister changed the terms of reference for Mulcahy by re-inserting a confidentiality clause, which unlike an earlier version omitted to state that the provision would continue in force “notwithstanding the termination of this contract by either party for any reason”. In the end the Minister partially reinstated the term relating to the confidentiality of his work. Moreover Convie wants the process to embrace An Bord Pleanála to which he claims improper representations were made. He claims that in the 1990s he bid on a site in Magheraroarty, Co Donegal, never trying to hide anything. His bid was accepted by the owner but on reflection Convie says he felt it was far too much land which his family could not afford. He was approached by a builder in Donegal, Patrick J Doherty, and was delighted when he agreed to take the land and Convie bought a site from him. This posed potential conflicts of interest for Convie. However at all stages of the multifarious transactions, Convie made the necessary declarations of involvement in the land. Doherty made a pre-planning application to determine the attitude of the planning office to the development of the site. As the relevant planning official was on leave [and Convie was dealing with his work as well as his own] he says

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

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    Twenty 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 therefore 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 threatenedthat, 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 building 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 witha 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 tribunal. 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 corruption 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 predominantly 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 repower 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

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