The members of An Bord Pleanála wield huge power, yet there is little transparency in how they are appointed.
One case in point involves the appointment of deputy chair Paul Hyde, who is being investigated over allegations of conflicts of interest.
Mr Hyde was appointed in 2014 by the then environment minister Phil Hogan. He had previously been appointed to the board of the Marine Institute by Simon Coveney, the current foreign affairs minister. The two men have known each other since childhood through family connections.
The minister of the day in the relevant department (previously environment, currently housing) selects board members from a pool of nominations from various civil, social, and planning organisations and professional bodies. The total numbers vary, but in the governing Planning and Development Act 2000, 37 people are named. However, only a handful nominate on a rotating basis when a vacancy arises. The minister then selects from these nominations.
There is no transparency on how exactly the minister decides who would be the best person for the job.
Mr Hyde’s nomination illustrates the highly politicised nature of the process
He was nominated by the Irish Rural Dwellers Association (IRDA), a body that was effectively opposed to planning restrictions for one-off houses.
The IRDA was formed in 2002 by Jim Connolly, who remained its principal figure. The group conducted public meetings around the country and lobbied government about planning restrictions.
Mr Connolly appeared before Oireachtas committees.
In environmental terms, the IRDA and Mr Connolly saw themselves as a balancing force to An Taisce, the environmental and heritage body
Meanwhile, An Bord Pleanála was routinely upholding objections to one-off housing around the State at the time, more often than not lodged by members of An Taisce. These cases tended to be the most extreme examples of one-off housing, which at the time accounted for up to 40% of housing units built on an annual basis.Quite obviously, the decisions of the board were a source of major annoyance to Mr Connolly and his organisation. In 2006 the IRDA was added by the Fianna Fáil/Progressive Democrat government as a nominating body for An Bord Pleanála members.
The basis for doing so is unclear but there was some political support for the IRDA in rural Ireland as one-off housing was a hot topic. Despite that, the organisation remained largely a one-man band and it now found itself in the position of being able to nominate for membership of An Bord Pleanála.
IRDA nomination
The IRDA was wound up in 2012. Two years later, as first reported in The Ditch, Mr Hyde was appointed to the planning board after being nominated by the then defunct organisation in 2013.
What status this accords to Mr Hyde’s appointment remains unclear, although that does not form part of the current investigation into his activities as a board member.
Sources close to Mr Connolly said that he has no recollection of involvement in any nomination process to do with Mr Hyde and he does not know Mr Hyde.
What is concerning is whether or not department officials or the minister of the day, Phil Hogan, were aware that the IRDA had been wound up when its nomination was accepted
Questions also arise as to why Mr Hyde was nominated by the IRDA as he had no known association with the body. Mr Hyde was the second nominee that the IRDA managed to get appointed to the board.
In 2011, it nominated an architect Michael Leahy, who was also appointed. Mr Leahy is the current chair of the right-wing organisation the Irish Freedom Party.
Unusual achievement
So the IRDA, a small organisation formed on one man’s vision and in existence for just 10 years, managed the highly unusual achievement of getting two of its nominees appointed to An Bord Pleanála.
The capacity of the defunct IRDA to nominate for the board was in complete contrast to another nominating organisation, which also was disbanded. The Combat Poverty Agency (CPA) was named as a nominating body in 2001 in the statutory instrument which gave effect to the 2000 legislation.
In 2010, the CPA was dissolved and integrated into the Office of Social Inclusion, as it then was.
According to a spokesperson for the Department of Housing: “Following its integration, the department no longer received nominations from the Combat Poverty Agency for vacancies arising in ABP [An Bord Pleanála].”
A body representing the economically disadvantaged no longer had a say, yet Mr Connolly’s IRDA was in a position to continue nominating — and doing so successfully — after its dissolution
Other nominating bodies are entirely transparent about their role in the process, even though they have nothing more to do with it once nominations are handed over to the department. Typical of this approach would be the Irish Congress of Trade Unions (Ictu), which is named in the 2000 act as a nominating body.
Ictu general secretary Patricia King says that last time congress was asked to nominate for a position on the board was in June 2020.
“We were asked by the department to put two names forward and have a gender balance,” she says. “The other requirement was for a detailed CV and to ensure that the person whose name was being put forward had consented to it. We put it out to our 44 affiliate unions. In the end we submitted three names but none of them ended up being appointed to the board.”
The minister’s discretion remains central to selection of board members. According to a spokesperson for the department, a practice of organising interviews with nominated candidates was introduced last year.
“The purpose of these interviews is to ensure that candidates have an understanding of the role of the board member and to explore their relevant experience,” the spokesperson said.
Candidates are not ranked but a summary of the engagement is presented to the minister along with candidates CVs
Irrespective of the outcome of any process, the minister is not obliged to consider anything but his or her own judgement on the best candidate. Before An Bord Pleanála was established under a 1976 planning act, the minister had even more power than is wielded by the office today.
Early days
The board was set up on January 1, 1977. Up to that point, the minister of the day dealt with planning appeals. The local government minister at the time, Labour’s Jim Tully, was well known for allowing appeals, even those deemed to be contrary to any notion of good planning.
The system, in which the minister just made a decree based on his own judgement and alleged experience, couldn’t be sustained if any semblance of proper planning and equality before the law was to be maintained.
The new board was established but initially it was the minister who made the appointments. The first chair was a High Court judge, John Pringle.
Mr Tully kept his nose in by appointing to the board a local party hack from his own county of Meath.
This man made a living delivering bread, but the board was supposed to represent a cross section of society, notwithstanding that the same individual was a well known supporter of the minister
In recent decades, the composition of the board has swung completely in the other direction, with all members from a technocratic background, usually planners or architects. Appointments remained the preserve of the minister of the day for the next few years.
In June 1981, just before Fianna Fáil left government, three appointments were made to the board. One of these was to fill a vacancy left by a retiring member, but the other two were additions, increasing membership from five to seven.
In December 1982, when Fianna Fáil was again leaving government, another two members were appointed, this time by Ray Burke, who would go on to feature prominently in the planning tribunal and serve time in prison for tax offences.
Mr Burke’s successor, Labour leader Dick Spring, referenced these appointments when debating a new bill in the Dáil in 1983.
“The way in which the power of appointment of ordinary members has, in practice, been used in recent times has led to a diminution in public confidence in the appeals system," Mr Spring said.
In particular, the circumstances surrounding some appointments, and especially their timing, seriously affected the general public’s perception of the board as an independent and unbiased tribunal
Mr Spring’s bill provided that the chair would be selected following nominations from various construction and professional representative bodies and would serve seven years.
Ordinary members were to serve five-year terms and would have to be nominated by a whole range of bodies across society.
Fair arbiter
From then until 2000, the board gained a reputation for being a fair arbiter and in some ways was ahead of its time in giving weight to environmental and conservation issues. The major Planning and Development Act of 2000 further set out the selection process.
This outlines that the chairperson is selected by the government from a list of at least three candidates presented by a committee chaired by a High Court judge.
Eight of the remaining nine places on the board are selected by the relevant minister from nominating organisations across society — from representative bodies in planning and construction to civic groups.
These range from the Irish Planning Institute and the Society of Chartered Surveyors to Fáilte Ireland, the National Disability Authority, the Irish Countrywomen’s Association, and the National Youth Council of Ireland. Board members serve five-year terms, which can be renewed.
The chair of An Bord Pleanála attracts a salary of €204,603 per annum, the deputy chair — currently occupied by Mr Hyde — is paid €144,056, while ordinary members receive €127,677.
The most recent appointment was that of Patricia Calleary, a sister-in-law of prominent Fianna Fáil TD Dara Calleary. She was nominated by the Irish Creamery Milk Suppliers Association.
Ms Calleary is a chartered engineer and holds diplomas in planning and environmental law. As such, her professional profile would be very much in line with that of her fellow board members. She also served as an inspector, a route to the board that has been availed of by others before her.While the structure might infer that appointments are at arm’s length from the minister, the reality is somewhat different. If, for instance, you are seeking an appointment, one thing you can do is check out the lie of the land politically.
Maybe your local TD knows the minister. Maybe your local TD is the minister. You go and lobby one of the nominating bodies, explaining why your talents are desperately required by the planning system.
There are plenty of targets for such lobbying and plenty of ways of making your case. Once your name is put forward by one of the bodies, somebody can have a word in the ear of the minister, letting him know that you are God’s gift to planning appeals and a failure to appoint you would be dereliction of duty.
Others seek appointments based on their experience in planning. However, the system was designed to include a range of voices and the recent migration towards a completely technocratic board gives rise to the possibility of groupthink.
Independent review
- “The list of prescribed bodies that nominate candidates for appointment by the Minister, as set out in section 106 of the 2000 Act, is outdated and should be reviewed to include representation of society’s wider interests”;
- “A formal job specification for ordinary Board members should be made publicly available and should reflect the Review Group’s view that, whilst useful, ordinary members do not need to have prior knowledge of planning and environmental law and policy; the job specification should however make it clear that successful candidates would be prepared to achieve a working knowledge of these matters”;
- “Two board members should be recruited through open competition and should be selected for board membership by the Public Appointments Service in a manner broadly consistent with appointments to other public bodies";
- “To encourage engagement in the appointment process from a wider pool of candidates, the process concerning the selection of board members should be amended, with a view to greater transparency and public awareness of board member duties and required qualifications.”
In reply to a Dáil question from Sinn Féin’s Eoin Ó Broin, the Minister for Housing provided a tabulated form of responses to the review group’s recommendations. All of those associated with reforming the appointment process are listed as “To be determined in a review of legislation”.
Six years on from the publication of the review there has been precious little change in the process.