It has been a bruising few weeks for An Bord Pleanála and its deputy chairperson Paul Hyde. On top of a bruising few years. The effect of soaring house prices, shifting government policy and the scant availability of public or private homes to rent or buy has eroded trust and increasingly put the spotlight on the national planning body.

Contentious decisions of the board have ranged from the controversial to the merely unpopular and have mostly centred around strategic housing developments (SHDs), the controversial government scheme introduced in 2016 legislation to ramp up residential stock. These have ranged from eyebrow-raising clashes with Dublin City Council over high rise builds in the docklands to the lifting of the ban on so-called “cuckoo funds” bulk buying apartments at the O’Devaney Gardens site in Dublin, formerly in public ownership.

But criticism of the board, of late, shifted up a gear, moving beyond any perceived failings it may have as an impartial quasi-judicial body to allegations of impropriety at an individual level. In recent days, Minister for Housing Darragh O’Brien commissioned senior counsel Remy Farrell to investigate claims that Hyde, who heads up the board’s SHD division, failed to declare a conflict of interest after he turned down a fast-track development project in Blackpool, Cork. 

Hyde has temporarily stepped aside having denied allegations contained in a series of reports by online publication The Ditch and also by the Village magazine. Specifically, Hyde claimed in a letter to the board last month that no conflict had arisen as the company he has a quarter stake in, H2O Property Holdings, is dormant with a “zero balance sheet”, meaning no declaration was required.

An Bord Pleanála is now carrying out an extensive trawl through previous planning decisions of the deputy chairman as part of an internal audit. In a statement, the board said it will “fully co-operate” with
the process announced by the minister, and that it is also reviewing, and seeking legal advice “in respect of, certain issues arising from these matters”. In an updated statement, it added that Hyde had agreed with the chairperson to absent himself on a “strictly without prejudice basis.”

Hyde, a qualified architect and planner, was appointed to the board in 2014 by former environment minister Phil Hogan. He co-owned a yacht with the Minister for Foreign Affairs Simon Coveney, who had previously appointed him to the board of the Irish Marine Institute when he was minister for the marine.

Appointing the board

Regardless of the fallout of the internal and external reviews, there is a certain irony in their timing given that Strategic Housing Developments (SHD), the source of intense external scrutiny and so much of the board’s strife, are finally on their way out. But perhaps it was inevitable the debate would swing around to individual appointments given the government’s failure to implement the recommendations of a 2016 external review chaired by UK barrister Gregory Jones QC, which found the current recruitment process outdated.

Bar Hyde, who is in his second term, the other eight members of the board including chairperson Dave Walsh, were first appointed after the report’s publication by the current or last government.

Under the planning acts, the chairperson is appointed by the government from a shortlist selected by a committee following a public competition. Ordinary members are chosen by the minister from a group of names proposed by the Irish Planning Institute, the Royal Town Planning Institute, the Institution of Engineers of Ireland, the Society of Chartered Surveyors, the Royal Institute of the Architects of Ireland, the Association of Consulting Engineers and the Irish Landscape Institute. 

Public bodies are often accused of providing insufficient reasons for their difficult decisions. It is a classic administrative law complaint.

To further depoliticise the process, the 2016 report said appointments should represent society’s wider interests. It suggested recruiting two of the board’s ordinary members through an open completion. It also recommended that like other public bodies, all nominated persons should be subject to a selection process by the Public Appointments Service.

When the board was set up in 1976, it was serviced by staff of the Department of the Environment and its ordinary members were directly appointed by the Minister for terms of up to three years. The appointment’s process was changed to reduce political influence but the 2016 report pressed the need for greater reform. 

A collision course

Separately the report notes: “In terms of its relationship with the Government, An Bord Pleanála was established such that it was independent in terms of planning decision-making, but was required to take account of policy.”

Sinn Fein’s Eoin Ó Broin

And therein lies much of the friction of recent years in respect of the board’s role at a time of acute housing shortages. To what extent is it the board’s function to implement government policy? How wide is its discretion, how is it being exercised and is the board transparent in its decision making as an administrative body? And then there is the more down to earth question – is An Bord Pleanála simply overwhelmed by an increasing, and increasingly complex, caseload?

“The biggest problem for the board in recent years hasn’t actually been the board in the first instance, but has been a number of decisions by governments that have introduced a new level of conflict in our planning system that really before 2017/2018 didn’t exist,” said Sinn Fein Housing spokesperson Eoin Ó Broin. 

“And while a lot of the public debate has focused on the strategic housing development process, it’s actually more the mandatory ministerial guidelines that Eoghan Murphy introduced in 2018 around building heights and design standards that have been the flashpoint. Irrespective of whether you agree or disagree with those guidelines, what those guidelines did was they put central government policy on a perpetual collision course with the existing city and county development plans, but particularly the Dublin City Development Plans and the Dublin County development plans.”

A fast-track system

This paradigm is exemplified best by the Johnny Ronan docklands towers controversy. SHDs and building height guidelines are very much part of the saga.

Introduced on the back of industry lobbying to fast-track large scale residential projects, SHDs allowed developers to bypass local authorities and apply directly for planning permission to An Bord Pleanála. The express aim of the one-stop SHD shop was to create momentum in delivering much-needed homes. Under the 2016 Planning and Development Act, SHDs are permitted to materially contravene the development plan for the area, except for zoning, provided they meet certain conditions. 

But the speed of decision making, often associated with dense, high rise, build to rent schemes that proved unpopular among some in local communities, and the lack of an in-built appeal process led to a perceived democratic deficit as the only meaningful recourse for objectors was the High Court. 

From their implementation in 2017, SHDs led to an unprecedented wave of judicial reviews against the board’s decisions leading to An Bord Pleanála’s reluctant rejection of Ronan’s proposal for a 40-plus storey tower just south of the Liffey.

A new paradigm

Nearly a decade earlier, in 2012, Dublin City Council had been designated as the development agency to prepare a planning scheme for the regeneration of the docklands as a strategic development zone (SDZ). This was done on foot of 2009 ministerial guidelines on sustainable development. The resulting proposals, following environmental assessments, were described as “world class” by the Fine Gael-led government of the day and approved by An Bord Pleanála in 2014 before being implemented in the city development plan in 2016.

Then as the housing situation deteriorated the government introduced legislation for strategic housing developments to speed up the delivery of large scale residential projects and later, ministerial guidelines advocating increased building heights to increase densities in certain urban locations. The upshot of this policy shift was conflict between the board and DCC over how high was too high, the nexus being Johnny Ronan’s proposed 13 storey and 11 storey apartment/co-living blocks in the docklands, which exceeded the existing height restrictions for an SDZ. 

“We’re never quite sure why the board makes the decision it does”

Rebecca Moynihan

But under SHD legislation, Ronan’s company could choose to bypass the normal planning process of applying to the local authority for permission and go straight to An Bord Pleanála. While the council and the board’s own inspector took issue with the design of the towers, elements of which were described as “bulky” “inelegant” and “unattractive”, the board forged ahead and granted permission.

Implicit in the board’s decision was its view that it was allowed to grant permission to a project in material contravention of the docklands planning scheme in order to meet revised national policy objectives on housing density that allowed SHD planning applications to exceed default height limits.

The courts found otherwise in a round of bruising judicial review challenges for the board. Mr Justice Richard Humphreys in the High Court said in November 2020 it wouldn’t make sense to have two entirely different planning regimes – regular and SHD – with different rules and potentially different outcomes. “It’s hard to see what’s in it for the public interest. The legislation shouldn’t make the outcome of a planning application a toss-up depending on the subjective choice of the developer as to which forum to shop his or her application into,” the judge found. He also noted: “In fairness to the board and the developer that the drafting of the legislation leaves something to be desired”.

Low rise

Ronan Group Real Estate applied for the commercial part of its Waterfront South Central development under SDZ and was approved by Dublin City Council. At the same time it bypassed DCC and applied to ABP under SHD for the residential element of the development of 1,005 apartments. This was refused reluctantly by ABP because it felt constrained by an earlier decision made in relation to another Ronan development in Spencer Place, the new headquarters of Salesforce.

When reviewing Ronan’s application, the board absorbed the earlier Spencer Place judgement and concluded it did not have jurisdiction to materially contravene the North Lotts and Grand Canal Dock Planning Scheme under the SHD legislative provisions.

While groups like the Docklands Business Forum rowed in behind Ronan, declaring the proposed build “modest in height” (being only half the height of the Shard in London), it didn’t matter because DCC had already set a precedent with Spencer Place which ABP believed also applied to Waterfront. ABP therefore had no choice but to turn down Waterfront too after DCC made an observation under the SHD process, noting the Spencer Place judgement also applied, it believed, to Waterfront. 

Ronan has appealed the Spencer Place decision in front of the Court of Appeal in July 2021, but a decision has yet to be handed down. The entire back and forth over Waterfront illustrates how difficult it is to know which rules apply, as DCC and ABP disagreed about what was the best thing to do for Dublin creating more uncertainty and delay during an unprecedented housing crisis.

A losing streak

By the time the dust settled, An Bord Pleanála had been put through the wringer legally and not just by those who would preserve Dublin’s low-rise skyline.

As the strategic housing system bedded down, the legal challenges kept on coming; a continuing collision course between communities, developers, and the local and national planning authorities. Objections were upheld for multiple reasons from inadequacy of birds surveys under the Habitats Directive, zoning issues and overshadowing of existing homes.

In 2020, the board ruled on 126 SHD applications. It  granted permission with conditions in 98 cases and refused permission in the remaining 28 cases. The same year, 83 legal cases were lodged against the board, up from 48 in 2016 and 55 in 2019. 

An Bord Pleanála’s annual report laid bare the cost to the board of this new wave of litigation; legal fees in 2020 soared to €8.2 million, more than double the €3.3m spent in 2019. 

The Irish Times reported in February that the board had won just two of the 36 cases finalised at that point. 

“I think one of the reasons they’re going to judicial review is because people have been told specifically there is no appeals process on this unless you exercise a judicial review. That’s actually been a driver,” said Cian O’Callaghan, housing spokesperson for the Social Democrats. 

“And I think also, there’s probably a bit of a knowledge and experience of people and communities who are engaged in the planning process now building up around judicial review. The government kind of encouraged and almost unwittingly trained up people involved in planning processes and local communities in the judicial review process,” he added.

Faith in the planning process had clearly taken a knock.

A “Frankenstein monster” at work

Minister of State for Local Government and Planning Peter Burke complained of a judicial review “industry”. In response, the government moved to curb access to the courts with the Housing and Planning Development Bill 2019, but the proposed legislation – unpopular with junior government partner the Greens – was recently shelved.

The bill proposed that judicial review proceedings would require applicants to have a “substantial interest”, and not just a “sufficient interest” in a planning matter as currently required. The Law Society, the representative body for solicitors, pointed out that this would potentially clash with Ireland’s European access to justice obligations in environmental matters under the Aarhus Convention.

Changes were also proposed to the ‘automatic standing rights’ for non-governmental organisations (NGOs), extending the minimum time an NGO must be in existence from 12 months to three years. This would exclude any newly established NGOs with environmental concerns, like a community group set up in opposition to a particular development, from bringing judicial-review challenges. 

The bill also sought to impose caps on legal costs set at €5,000 for individuals, €10,000 for groups, and €40,000 for defendants which again would have likely acted as a deterrent to cash-strapped objectors. Currently, NGOs are not entitled to legal aid.

In a letter to an Oireachtas committee last month, Housing Minister Darragh O’Brien said the proposed Bill was not now going ahead as a standalone piece of legislation. Instead, it is to be subsumed into a wider review of planning laws being conducted by the Attorney General Paul Gallagher in tandem with the introduction of a dedicated environmental and planning court next year. 

In a submission to the Oireachtas Housing Committee, solicitor Fred Logue of the firm FP Logue, which has frequently acted for objectors bringing SHD challenges, compared the proposed changes to a “Frankenstein monster”.

“It’s like if somebody was told to go around Europe and go back into the past to find all of the restrictive measures on judicial review that they could find, and stitch them all together into this kind of semi-animated corpse that has the appearance of judicial review, but in reality would make judicial review virtually impossible. That’s like something you’d see in Eastern Europe or in the UK. Even the UK wouldn’t have tried something that bad,” he told The Currency. (The British government last month rowed back on several proposed reforms restricting the scope of judicial review following a series of narrow defeats in the House of Lords.)

The national goes local

Darragh O’Brien, Minister for Housing, Local Government and Heritage. Photo: Bryan Meade

The second way the government responded to the legal onslaught against An Bord Pleanála was to replace the controversial planning one stop-shop that was SHD’s – always subject to a sunset clause- with Large-scale Residential Developments (LSRD) which restores the local authority as the first port of call for planning applications and reassigns An Bord Pleanála to its more typical role as an appellate body. 

This coincides with the delivery of revised and updated city and county development plans in 2022 and 2023 that will have absorbed the shift in national housing policy objectives of the past decade, including higher densities of 23 to 24 storeys in urban areas in an expanded range of locations.

This may lead to fewer confrontations between objectors and An Bord Pleanála especially as the new Office of the Planning Regulator led by Niall Cussens will monitor the implementation of the National Planning Framework through local development plans. Although the lack of resources available in local authorities for forward masterplanning means the process is never going to be perfect. Already there have been tensions and a legal spat involving the watchdog.

“In terms of its relationship with the Government, An Bord Pleanála was established such that it was independent in terms of planning decision-making, but was required to take account of policy.”

Organizational Review of an Bord Pleanála, 2016

“It’s far from clear that local authorities are, in fact, doing their job of upgrading their development plans,” says McCann Fitzgerald partner Brendan Slattery, who works in the areas of environment, planning and climate change, frequently on behalf of development interests.

“And if you read the transcript at any council meeting, decisions around development plan making, it would absolutely trouble you the way in which elected local councillors are making decisions that are supposed to be decisions consistent with proper planning and sustainable development when in fact, the decisions are being made for popular or populist reasons.

“And that does concern me because I think the board should be emerging into a space where it’s easier for it to respect development plans, because those plans should be respectful of national policy. And I don’t think it’s going to emerge into that space.”

Slattery cites a legal action brought against Kildare County Council after its upgraded plan reduced the dwellinghouse target by 80 percent in parts of the greater Dublin commuter belt, previously identified as required to help meet housing need. He said he also wouldn’t be surprised if the new Dun Laoghaire Rathdown county development plan – the draft of which fell foul of the regulator over “surplus lands zoned” – faced legal challenges.

Of course, embracing national policy extends beyond just housing. Environmental obligations are equally in the mix. “[An Bord Plenala] does have regard to government policy, but it’s not an executive agency. Its job is not to solve the housing crisis. Its job is to grant planning permission based on the principles of proper planning and sustainable development and to ensure environmental protection,” he said.

Rewarding quick decisions

But even if axing SHDs won’t draw a line under An Bord Pleanála’s legal woes, it should reduce the burden. The next question is whether there are lessons to be learned from the government’s fast-track experiment.

The answer is, a few. First, the new changes have to be bedded in. At the time of publication, An Bord Pleanála still had around 60 live SHDs on its books, the product of a last minute surge in applications before the deadline expired. Most of the proposed units (roughly 25,000) are in Dublin. Based on past performance, at least some will face legal challenges. And unless they are subject to an oral hearing, uncommon for SHDs, each of these applications will have to be turned around within 16 weeks. The deadline for the last 22 decisions falls within the first three days of August. Penalties apply for late decisions. This is hugely onerous.

Timewise the new LSRD system also prioritises expedition for large scale residential projects. The legislation provides for an eight week pre-application consultation with the local authority, a mandatory eight week decision timeframe and a 16 week appeal window.

Even with the new longer gestation periods, Fred Logue questions the urgency when it comes to major planning permissions. “The board or the local authority gets a financial penalty for making a late decision. So the question is, does that incentivise them to make rushed decisions. There’s no penalty for other delays, delays in publishing information, for example. So the penalties are favouring quicker decisions.

“The question that has to be asked then is whether the quality of a decision can be maintained while respecting the deadlines, because it was always kind of a conundrum that the largest developments had to be decided in the shortest period of time. You can take six months to decide a planning appeal on somebody’s back garden extension,” he said.

On this score Slattery expresses greater optimism. “A longer gestation period for the making of planning decisions, I think will lead to greater public satisfaction with the outcome of the planning process and and a greater sense that the public has been properly heard such that the appetite to agitate complaints in court will be dimmed and reduced,” he said. 

The need for transparency

Labour Senator and housing spokesperson Rebecca Moynihan. Pic: Bryan Meade

Another concern repeatedly raised by planning objectors that is within the board’s power to address is the opacity of the board’s decision making, particularly where the board has gone against the advice of its own inspectors’ reports. For example, this has happened in SHD mixed-use schemes proposed for Bulloch Harbour in Dalkey, Co Dublin; in Blarney, Co Cork; and the Players Wills scheme in Dublin city. While the board is free to disagree with its own planning counsel, it is obliged to give reasons why. These explanations have, at times, critics say tended towards the boilerplate.

“We’re never quite sure why the board makes the decision it does,” says Labour Housing spokesperson Rebecca Moynihan. “Sometimes in the decisions and recommendations that it gives, when it’s dismissing what its own planner has said, they make very broad sweeping statements.”

In-house disagreements between the board and its inspectors do not always work to the advantage of developers. In 2018, the board went against its inspector’s recommendations and refused Crekav Trading GP, a subsidiary of developer Marlet, planning for apartments in Raheny over the adequacy of its environmental assessments in respect of the Light-bellied Brent Goose.

Moynihan says it often seems Ireland’s planning system is not knitted together at a local and national level. “There was a huge issue a couple of years ago of student accommodation being placed in the inner city, but specifically Dublin 8. An Bord Pleanála came in to us in the Housing Committee and they were like ‘we know it’s a problem but if it’s zoned for residential and student accommodation we have to give it permission’. Whereas actually the development plan itself was a little bit more specific. It said that you have to list intensification of student accommodation or demonstrate that the numbers of people who needed that accommodation were there – and they just weren’t. That’s partially the system that we have. But it’s also the interpretation that An Bord Pleanála put on it,” she said.  

“I’ve brought challenges to decisions made by the board and they often include a complaint that I don’t understand the decision and it’s not well explained,” said Slattery “Where the board and its inspector agree there’s a lot of information explaining why something has happened. Where the board and its inspector disagree, that’s very different,” he added.

Public bodies are often accused of providing insufficient reasons for their difficult decisions. It is a classic administrative law complaint (although rarely a decisive one in determining the outcome of a judicial review). If An Bord Pleanála is sometimes terse in justifying its difficult decisions in writing, Slattery puts it down to time pressures, heavy work burdens and chronic under-resourcing of the board. He does not believe it’s because the board is merely box-ticking major developments. 

Overall, the board received 2,753 new cases in 2020 up fifty per cent from the 1,810 cases received in 2014, when construction in Ireland was still in the post-crash Nama doldrums. Full time employee numbers have not kept pace with An Bord Pleanála’s heavier caseload. The highest number of staff employed during 2020 was 175.4 compared with the average number of full time employees being 135.2 in 2014, a rise of around a third.

And that doesn’t account for the increased complexity of the board’s caseload. Planning law has been transformed in the past two decades by environmental legislation, much of which is based on EU directives.

There are tangible benefits to transparency. It may not stop legal challenges, but the courts are more likely to uphold the board’s decisions if they are well reasoned. More importantly it improves public trust in the board as an institution, which has been badly eroded. Even this fairly modest aim requires additional government resources. Last year, in a submission to the Department of Public Expenditure-led review of the National Development Plan, the board said it needed 16 extra staff to manage its workload. It had significantly underestimated just how much work would be involved in deciding SHD applications. Throw into the mix, the expanding remit of An Bord Pleanála, which will soon expand to encompass marine development, and it’s clear something has to give.