Committee Reports > List of Committees > Joint > 1998 > Committee on Environment and Local Government > Review - Planning Legislation

MIONTUAIRISC NA FINNEACHTA

(Minutes of Evidence)

Joint Committee on Environment and Local Government

Dé Céadaoin, 4 Márta 1998.

Wednesday, 4 March 1998.

The Committee met at 1 p.m.

Members Present

Deputy SeÁn Haughey in the Chair.

Chairman: I welcome the representatives from An Bord Pleanála: Mr. Paddy O’Duffy, chairman; Dr. Ann Quinn, Deputy Chairperson; and Mr. Paul Mullally, the Chief Officer. I thank them for coming before the committee to give details of the operation of An Bord Pleanála.

Essentially, the committee is involved in a review of the planning process. The Minister for the Environment and Local Government has initiated his own review and this committee has agreed to provide an input to it. At the last meeting, a number of questions were raised in relation to An Bord Pleanála and it was agreed that we would ask a deputation from the board to attend and assist members.

The delegation may wish to give the committee details of the board’s submission to the review of the planning process. I know the board has made a submission to the Minister for the Environment and Local Government in this regard and we would welcome anything the delegation might like to say in that regard.

I remind members that our debate is constrained somewhat in that we are asked mainly to consider issues in respect of Government policy only. Effectively, we are precluded from discussing day to day operations, particular planning applications, etc. I am sure members will be aware that the delegation from An Bord Pleanála will address us for a short period. Then any questions or observations from the members will be facilitated. The delegation might like to deal with the submission the board made to the Minister in the context of the review of the planning process and outline their role as practitioners in the planning process.

Mr. O’Duffy: We welcome this opportunity to meet members of the Joint Committee on Environment and Local Government. This meeting affords us an opportunity to clarify the role of the board and attempt to address the concerns of the members of the committee. I have very little prepared because I was not quite clear about the agenda of the meeting, and that is probably all the better so that we can respond directly to the points which are put by the committee. However, I want to make a few brief introductory comments.

We received the request to attend at this committee on 20 February and on 23 February we forwarded some documents: the board’s annual report for 1996, a standard pamphlet prepared by the Department of the Environment and Local Government on the making of a planning appeal and a note on the main characteristics of the planning appeals system. We think that particular note is important in the sense that it addresses the question of the independence of the board and the openness and transparency of its operations. We are not sure which items were of concern to the committee at this particular meeting but we will do our best to be of assistance.

The board’s main concern is the early enactment of the 1997 Planning Bill, which is a very short Bill. The board is operating at present on the basis that the intake in 1997 at 3,900 cases was 48 per cent up on the annual average of 2,661 in the period 1986 to 1995. We will not use too many statistics here today but, to put it crudely, we are operating at about 50 per cent over and above the annual average number of cases received over a recent ten year period.

Since the six person board was set up in March 1984, there is no precedent for the current level of operations. It reflects the growth in the economy, naturally, but the framers of the legislation did not envisage the volume of appeals which we are now receiving. Therefore, it is particularly urgent that this matter be addressed as soon as possible. The Bill was presented on 8 December 1997 and we would appreciate if the Oireachtas could enact the necessary legislation as soon as possible. The pressure is very intense. It is because of that pressure that there has been a deterioration in the standard of performance of the board.

Mr. O’Duffy: In the period of 1994 to 1996 we operated on the basis that at least 95 per cent of cases were determined within four months. This level of performance is without parallel in any part of the UK, in which different jurisdictions operate for planning cases - that is our only recognisable measure for our standard of performance. The average period for determining an appeal is currently about 17 weeks. That is still significantly better than in the UK but in our view it is not good enough - we feel that the Irish economy demands a higher standard of performance. We have set what we regard as achievable objectives; we feel it is possible to determine 95 per cent of cases within four months and on average within 13 weeks. That is a demanding standard but we have set it and we need the help of the committee, particularly as regards the urgent appointment of additional board members, as distinct from staff. The longer the delay in enacting the legislation, the worse the delays will be - the current period of 17 weeks may extend to 19 or 20 weeks. That is not fair to the public, which is entitled to a higher standard of service.

Having read recent comments on the work of the committee, we though it desirable to produce a handout to clarify the role of public representatives in planning appeals and the extent to which they can become involved in the process. We are circulating a two page document which clarifies the position. This handout is based on existing law because we are an executive body which must operate strictly in accordance with the law. For example a public representative is not normally entitled to make a submission on a planning appeal more than two months after the first appeal is sent in. The period for the making of an appeal is set down in the 1992 Planning Act. The handout seeks to clarify the position as regards making representations, the distinction between making a submission and becoming a party, and the rights of public representatives at oral hearings. I hope the handout will be of some assistance to the committee.

As to the review of the Planning Acts, 1963 to 1993, on 13 November 1997 the board made a submission to the Department outlining a number of suggestions on possible changes to planning law. I will outline some of the suggested changes and will try to be as helpful as possible. The board is an executive body which operates within the law.

One of the first areas we addressed was development carried out by local authorities. The board said it was desirable to provide for an appeal to the board in relation to certain developments by or on behalf of local authorities - for example, housing schemes, fire stations and libraries, but excluding water supply and drainage schemes. This may be a contentious area because it could be argued that the board should have no function in the developments carried out by local authorities but this is an area where the board has made a suggestion.

We also indicated that there was a lack of an appeal procedure in relation to the planning issues involved in the granting by the EPA of a licence for a waste disposal facility intended to be developed by a planning authority in its own functional area. The board might also be permitted to conduct public inquiries on compulsory purchase orders relating to the acquisition of lands for certain types of development. I am trying to indicate that the board has an open mind on the extension of its range of functions.

As to addressing more directly our practical experience of the existing scheme and range of functions, the board is concerned about delays arising from judicial reviews under section 19(3) of the Planning Act, 1992. Until about 12 months ago most people proposing to carry out work had a reasonable assurance that their appeal would be decided within four months - some 95 to 98 per cent of cases were decided within that time. However, in the case of judicial review of planning cases, delays of up to 15 months are not uncommon and in the board’s view this needs to be addressed. We should put the matter in context. Last year we handled about 3,600 cases and there were only 18 applications for judicial review. Over the last three years the board was unsuccessful in only three cases. We have an extraordinary record regarding challenges to our decisions because we are conscious of the need to comply with the law. In a number of cases, however, developments have been delayed unduly arising from the procedure relating to judicial review of the board’s operations.

I could pick a number of other areas out of our detailed submission but it might be handier to respond to specific concerns of the committee.

Acting Chairman: I thank Mr. O’Duffy for his comments and invite observations and questions from Members.

Mr. McCormack: The document on the role of the public representative in planning appeals partly answers my question. Arising from their position in the community public representatives can make a submission or observation based on their intimate knowledge of a planning application or the desired or undesired effect It may have on the proper planning and development of the area, because they are dealing with those matters on a daily basis. However, in the case of written representations, there are only two options. The first is just window dressing - the public representative writes to the authority and is then informed of the decision without being able to put a case. The second option is the same as for any other member of the public. Mr. O’Duffy said that was a matter of law but I was not aware of that. A public representative must pay the normal fee of £30 for making a submission on a planning application. Elected public representatives should be exempt from that fee because they incur enough expenses on matters in which they are interested without having to pay a fee to make a submission on a planning application. If the law does not allow that, this committee should suggest that the fee be waived because of the special position of a public representative.

Deputy McCormack,(cont.) There is no point in going through the window dressing of writing to the Appeals Board and saying you will receive a letter when the decision is made. In that type of letter you cannot make any observations about your knowledge with regard to the planning application, otherwise it would become a submission. It would only be catered for under phase 2, which would be same as not paying a fee. If that is the law the Committee should examine it afterwards.

While I am not talking about political interference, I fully accept the written statement that there is no political interference in decisions by the appeals board in individual cases. It is correct and proper that should be so, but there is a big difference between political interference and making a genuine submission because of one’s local knowledge of a particular situation in the area one represents. Public representatives should have the right to make submissions without being subjected to a fee,

Chairman: In relation to the fee that public representatives are also asked to pay, I raised that at the beginning of the debate. It is something the Committee should take up. When he laid down the law initially, the Minister felt that people would circumvent the fee by asking their public representatives to make an appeal, but I do not know if that is still the case.

Deputy McCormack: We could overcome that by making sure a submission would have to be made by somebody else in advance. In other words, somebody else would have to open the petition before the public representative could make one.

Mr. O’Duffy: To confirm the point, the amount of the fee and the circumstances in which fees are paid are fixed by way of regulations. Whatever changes might be made by the Minister by way of regulations, it is important that representations are made in good time and that that aspect would be addressed. The board’s main concern is to take cognisance of the statutory objective of determining appeals generally within four months. It is important to get the submission in at an early stage.

Deputy McCormack: I have no difficulty with that being part of it.

Mr. O’Duffy: You will note from the handout that we try to facilitate public representatives as much as possible at oral hearings.

Deputy McCormack: Yes.

Mr. O’Duffy: If they are acting on behalf of parties there are no fees.

Deputy McCormack: Yes, but they are a small percentage of all the cases deal with by the appeals board.

Mr. O’Duffy: That is quite correct, yes.

Deputy O. Mitchell: I agree with Deputy McCormack that it is a real problem for local representatives. As a county councillor it cost me quite a lot of money before I realised the required wording I had to use in my letters to An Bord Pleanála in order to circumvent the fee. It is a pity that local knowledge that can be provided by local representatives is missed out in the review process simply because it costs money to make representations. I have made submissions to various Ministers about this matter but to no avail. There is something fundamentally wrong about charging public representatives to carry out one of their functions.

You said you were worried about judicial reviews of decisions made by the board. This is a worry in a whole set of different circumstances including decisions of the board and compulsory purchase orders for road schemes. In the Road Act, which is before the Dáil at present, an attempt is being made to reduce the time available to seek a review after a decision has been made. Is the problem in this case the actual length of time it takes for a judicial review, or is it the length of time available to the public?

Mr. O’Duffy: It is the first stage. There is a time limit of two months within which an application can be made for a judicial review, but delays arise subsequently. It might be no harm to refer to the application for a judicial review in relation to the Hilton Hotel. That was before the courts at least 20 times. The decision was made by the board in December 1996 - that was over 14 months ago - and the High Court judgment is imminent.

Deputy O. Mitchell: It may not be the end of it. It could end up in the European Court.

Mr. O’Duffy: That is exceptional but the delay is still quite serious.

Deputy O. Mitchell: It is not that exceptional. There are a whole series of examples.

Mr. O’Duffy: There are others, yes. Fortunately, the number of cases where application was made for a judicial review is quite small, but often they are significant cases and entail much investment. They remove the element of certainty which was provided under the Planning Act, 1992, whereby over 95% of appeals, up to a year ago, were decided within four months. That certainty is gone if we move into the judicial review process.

Deputy O. Mitchell: So, speeding up the planning appeals process may, in fact, be of little use unless we also do something in respect of the judicial review system.

Mr. O’Duffy: Whether one agrees with it or not, another important example was the decision the board made on Kill dump. The judicial process has only concluded in the last few days and the board’s decision was made as far back as July, 1994. It is exceptional but there are certain lessons to be learned.

Senator Ryan: I am a bit taken aback at the tenor of my two colleagues’ views. We live in a country of law. There would be no judicial reviews if judges did not agree to allow people to apply for them in the courts. You cannot do it just because you feel like it, you must be allowed to apply for a judicial review. I accept that we will not talk about individual cases, but the ones that have been mentioned are, as Mr. O’Duffy said, big cases. The alternative would be not to have judicial reviews and to have an increasingly enraged public opinion, feeling increasingly excluded from influencing a decision-making process. At least this way, people are satisfied the law has been put through it paces.

The situation is similar concerning appeals to the European Court, which is not just something for the top of the system. It is meant to empower every citizen of the EU and give them rights they would not have if they were not citizens of member states. We should not really be talking about restricting, implicitly or explicitly, the ways in which people can either apply for a judicial review or their capacity to appeal to the European Court. We should examine the administrative and other procedures which cause all these matters to take so long. That is a problem concerning the number of judges and the extraordinarily cumbersome procedures required to involve the European Court in any matter it is competent to deal with. It is not about the principle.

If the Committee can do so, it should come up with ways - that are legally possible and constitutionally acceptable - to speed up the judicial review process and that of the European Court’s involvement. However, let us not for one second start to give people the impression that we as public representatives want to reduce access to the various institutions which are part of a normal democracy.

I fully accept that if the number of planning appeals becomes bigger it will be up to the Oireachtas and the State to ensure that An Bord Pleanála has the resources to deal with the increase.

Senator B. Ryan: Making it more difficult for people to appeal because the number of appeals has increased is not the way for a functioning democracy to work. It is to ensure that resources are available to see that these things can be dealt with.

I note from the main characteristics of the planning appeals system that in 89 per cent of cases the board accepts the general thrust of the inspector’s recommendation. I am intrigued by the other 11 per cent because it is difficult for a lay person to work out the criteria used by the board where it overrules an inspector. Are there categories of cases or categories of values of importance? I am not aware of the equivalent of case law developing under which inspectors report.

I welcome the degree of openness. The world did not collapse when inspectors’ reports became available to the public. It did not make a big difference, except to provide further evidence to the public of the openness of the system. It was a good idea.

Is the submission made to the Minister a public document and if so, can we have copies?

Mr. O’Duffy: We have no difficulty in making the documentation available, but I suggest it is a matter for the Minister.

Acting Chairman: The committee can pursue that.

Senator B. Ryan: It would be an interesting document for the committee to have at its disposal in terms of what we hope to do. You mention that third party appeals represented 36 per cent of determined planning appeals. Would they in most cases be the only appellant? In many cases there would have been an appeal.

Mr. O’Duffy: That is correct.

Senator Ryan: It would be interesting to ascertain the proportion of determined appeals where the only appellant is a third party. I do not agree that public representatives should be exempted from the £30 fee. It would turn them largely into the conduit. If somebody is building houses behind my house I would not be better served by having my local Deputy make the representations to An Bord Pleanála on my behalf for free when I can pay £30 to make the observations.

Deputy McCormack: The Senator was not elected to represent an area. He must acknowledge that he is a different kind of public representative.

Senator B. Ryan: If the Chair does not come to my defence I will do so.

Acting Chairman: Deputy McCormack is out of order.

Senator B. Ryan: The Deputy can say whatever he likes about me. We are here as Members of the Oireachtas and we should treat each other accordingly.

Deputy McCormack: When speaking of public representatives I was referring to local public representatives who have a knowledge of the area they represent.

Senator Chambers: While I was one of the members that proposed a vote that An Bord Pleanála be abandoned I welcome the delegation from board to the committee. We know very little about the board in that as public representatives there is a “them and us” situation. The divergence between decision made by the board and the planning authorities at county level amazes me. A good planning authority should be well able to determine many of the decisions that are best for their own counties. If it works effectively and has a good county development plan it should be able to make them decisively and fairly. Many counties have served their planning authorities well. In this regard, a decision by An Bord Pleanála regarding Achill Island was amazing because it contravened a decision taken by the county council and sparked a spiral of objection to Government policy regarding tax incentives for self catering units.

How many vexatious applications are heard by the board and how are they determined? The board has the power to determine if an appeal is of a vexatious nature or if somebody does not wish a development to proceed for business reasons or such like. If an appellant is not prepared to spend a substantial amount of money on his appeal to back up what he would regard as his fundamental right it may not receive the same recognition as an appellant who can do so. Does the ordinary appeal costing £30 receive the same treatment as one that is backed up by professionals? I welcome the opportunity to know where we stand in our dealings with the board and what the communication procedures are or should be.

Senator J. Doyle: I do not share Senator Ryan’s comments on a judicial review, indeed, I have sympathy with the view of the board. The decision in question was made by the local authority of which you, Sir, and I are members. I chair the planning and development committee. That decision was upheld by the board. However, the applicant had a planning permission which An Bord Pleanála granted and it now appears that he cannot act on it until the judicial review of another planning application is determined. That is another difficulty with judicial reviews.

In the document you have circulated you say that in interpreting the proper planning and development of the area, the board is empowered to contravene the provisions of the development plan but it seldom seeks to exercise this power. However, it has done so. When a local authority is requested to make a planning submission which contravenes the development plan the elected members can decide not to proceed and the planning application is refused. If they proceed they must undergo a certain procedure. The plan must be displayed for a month and objections from the public must be heard before a decision is made. However, if an appeal is made to An Bord Pleanála the board is free from that procedure and can make a decision without consulting the public even though it may be an application that is a material contravention to a development plan.

I have always felt than An Bord Pleanála should have to adopt the same procedures as a local authority must when it is making a planning decision which contravenes a development plan. I would like to hear Mr. O’Duffy’s views on that.

Mr. O’Duffy: I welcome the comments which have been made by the committee and I will try to deal with them.

As I said, fees are determined by regulations. Deputy Mitchell and Senator Ryan referred to the question of judicial reviews. We share the view that it is important to preserve the principle of judicial review prices. It could be argued that we are not directly involved, that, in other words, we have determined a particular appeal. However, there is a growing concern about the cumbersome nature of the procedure in judicial reviews as distinct from the principle of such reviews. It is very time-consuming and, to some extent, undermines the effectiveness of the changes made in planning law in 1992 when provision was made that the board should have a statutory objective of determining cases within four months. Due to the delays in relation to certain judicial reviews, the element of certainty in relation to proposed developments is removed or seriously eroded.

Senator Ryan also referred to the question of the board altering a recommendation made by one of its inspectors. In 1996 we accepted the general thrust of the inspectors’ recommendations in 89 per cent of cases. In cases where we do not accept the inspector’s recommendation, the reasons underlying that are generally obvious from the terms of the first schedule to the board’s decisions. In the more important or significant cases we try to spell out the reason in greater detail. For example, in the 1995 report on the proposal to construct a fibre board manufacturing plant by Masonite near Drumsna, County Leitrim, we set out in some detail the reason the board considered that planning permission should be granted. Similarly, we did not accept the inspector’s recommendation in the recent appeal relating to the National Gallery.

In the interests of being open, the board set up a website in December on which we indicate the range of qualifications and experience of board members. At Board level, there are healthy discussions and differences of opinion on issues. In a number of cases a majority decision is taken by the board not to accept the inspector’s recommendation. That was the situation in the cases of Masonite and the National Gallery and certain other decisions. Each case is considered on its merits. We spend a little longer on cases where we propose to depart from the inspector’s recommendation to ensure we have considered the matter fully. We also take particular account of the view of the planning authority, which has local knowledge, and the various submissions on the file.

In regard to the degree of openness of the board, at the beginning of 1995 the then Government indicated it wanted the reports of the board’s inspectors to be published. We considered this suggestion and felt it would be desirable to go the whole hog by opening up the entire file. Since 1995 every individual file which is determined is available for public inspection within three days. We are conscious of the fact that the role of the board tends to be misunderstood. It is incumbent on the board to be more open in its dealings with the public. However, there is a distinction between “openness” and the question of corresponding directly with individual board members, which is a completely different issue. Correspondence is addressed to the secretary of the board. The chief officer of the board, Paul Mullally, deals with the more difficult issues.

We are quite concerned about the area of openness. We understand ours is the only website of its kind in Ireland in relation to physical planning and there are only one or two such sites in the United Kingdom. We are anxious to expand the range of services we provide in that regard. As the committee is aware, we make available details of the appeals received and the decisions made by the board within three working days of the end of each week. We are trying to expand the range of information to be of assistance to the committee.

We are also obliged to keep in touch with outside organisations to try to get an understanding or proper appreciation of how they perceive the board is operating the appeals system. We have had meetings with bodies such as the County and City Managers Association and An Taisce. In view of concerns expressed on Second Stage of the Planning Bill which is currently before the Oireachtas, it might be appropriate for the board to approach the county councils’ general council and the association of municipal authorities in order to speak more openly and try to develop a better understanding of the role of the board.

In regard to the question of third party appeals, we indicated in our annual report that a notable feature of the appeals system in recent years is the increase in the proportion of third party appeals. I do not have the statistics in relation to the point made by Senator Ryan, but I will have it checked separately and write directly to the Senator on the matter. My attention was brought some years ago to a book he published on the lack of openness in the appeals system at that time. However, that has since been addressed.

Senator Chambers referred to developments on Achill Island and the number of vexatious appeals. When the legislation was changed in 1983 it was thought it would be a good idea, in theory, to give the board power to throw out these vexatious appeals. However, in practice we find that most people are fairly well briefed. They do not rely simply on a non-planning ground but invariably bring in some planning ground, even, for example, that the proposed development would give rise to a traffic hazard. It is quite easy to find planning reasons.

Mr. O’Duffy: The board has found in practice that the number of cases where an appeal is declared invalid on the grounds that it is vexatious is approximately 12 to 15 a year. It is very small so in practice that avenue is not effective.

Concern was expressed about appeals submitted by what might be described as the “small man” or “small woman” who has limited financial resources. Successive Governments and the board have been conscious of this aspect. I assure the committee that while it can be an advantage in more difficult cases to have professional advice, the board does its utmost to ensure that the concerns of every appellant are taken into account. Even if the grounds of appeal are not well expressed, there is a requirement on the inspector to examine the appeal de novo generally and spell out the issues in detail. The board will ensure that every concern is addressed adequately..

In relation to oral hearings, the regulations provide that the appeal should be conducted without undue formality. Nobody should feel inhibited by turning up at an oral hearing without professional representation. The board is particularly conscious of this aspect. It is a feature of the system which in some respects distinguishes the board from the appeal systems that operate in the United Kingdom. They consider that the provision about undue formality may be worthwhile and it is an avenue they are now exploring. In our case up to 12 months ago, between 95 and 98 per cent of our appeals were determined within four months. A typical time lag in the United Kingdom, even at this stage, is approximately 30 weeks. We are concerned because it takes us 17 weeks on average to determine an appeal and we do not consider that this performance is good enough for a modern country. In the United Kingdom, people are much more inclined to be litigious. This is not a problem with the planning appeals system, unlike certain other areas of Irish life. The number of applications for judicial review is limited.

Senator Doyle raised the question of the power of the board to contravene the provisions of a development plan. It was indicated in the document which was circulated regarding certain characteristics of the appeals system that the number of such cases is small. In practical terms, the issue of whether a particular proposal contravenes a development plan can sometimes involve a difference of opinion. It can be subjective. I wish to take the liberty of expressing an opinion on a matter which might require a change in the law. If the Board did not have that discretion, there might be many more applications for judicial review. The board is reluctant to make a decision which flies in the face of the main provisions of a development plan. However, sometimes on the borders, there is room for some discretion. The board is rarely at odds with the provisions of development plans.

Acting Chairman: Time is running out and Deputy Killeen, Senator Walsh, Senator Kiely and Deputy Kelleher have indicated that they wish to contribute while Deputy Olivia Mitchell wishes to make a point of clarification. I ask members to confine their remarks.

Deputy Killeen: It appears that the board considers an application as if it were new. However, it will only be referred to the board after it has been considered by the local authority. How much of local authority files does the board view? Does it only consider the decision? What is the practice in this regard?

Senator Joe Doyle mentioned contraventions of county development plans and whether the board takes account of the local authority’s decision, particularly if it was taken on the basis of a vote. My recollection is that if there are 40 members of a local authority, 30 are required to vote in favour of the proposal in order for the local authority to grant the permission. If it is granted and there is a third party appeal, An Bord Pleanála will then be considering an application that was granted by the local authority.

There have been cases where 29 members from a total of 40 members of a local authority vote in favour in a proposal while three voted against it. This is a clear democratic majority, but it does not meet the voting requirement for a contravention. In such cases, the local authority would have refused the application and the appeal would be on that basis. Does the board consider the opinion of local authority members as expressed in a vote? Does it disregard that entirely and deal with the matter as if it were a new application without any local authority history attached to it?

Section 5 of 1976 Act appears to require the board to be informed of the objectives and opinions of Ministers, public authorities and others. In some instances, this has been superseded by a court action in relation to the OPW’s visitor centres. There are now some cases where Ministers and public bodies, who were previously exempt from the entire planning process, are required to make applications. Undoubtedly, most of these will end up in the lap of the board. How does section 5 of the 1976 Act tally with subsequent court decisions? How does the board intend to deal with applications from Ministers and public bodies made as a result of the court decision?

Senator Walsh: In general the system serves local authorities and An Bord Pleanála well. The level of transparency in the system should continue. Local authorities are constrained by a time factor in terms of making decisions. I understand the position with regard to An Bord Pleanála is aspirational rather than mandatory and the timeframe of four months is not always met. How would Mr. O’Duffy view a mandatory set time that the board must meet?

Senator Chambers mentioned the dismissal of vexatious appeals. A certain proportion of the appeals referred to the board are vexatious. Does Mr. O’Duffy have any suggestions on how these might be identified? I take his point that most people are sufficiently knowledgeable and will engage others to advise them and link their case to some aspect of planning. More insidious types of appeals concern me greatly. In these cases, people use the appeals system to try to extract soft money from developers. One of the newspapers commented on this aspect recently, as I mentioned at the previous meeting. The difficulty with doing something about this problem is that it may inhibit people whose objections to a development are genuine. However, the current system is open to exploitation and this may be happening in some cases. What can be done to eradicate and control this problem?

Mr. O’Duffy said the number of appeals is increasing. The number of applications received by local authorities is also increasing considerably because of the general economic climate. What is the ratio in this regard? Can local authorities do anything to reduce the number of appeals on planning decisions? I agree with Deputy Mitchell and Deputy McCormack.

Public representatives should be exempt from the fee when they make bona fide representations on issues concerning their areas. Councillors, the only unpaid public representatives, have to pay for making representations on issues that affect their area and I support a change in this area.

Senator D. Kiely: I welcome the idea of opening the files and making inspectors’ reports available, but does every case go before the board? Recently I was involved in a case where we got a copy of the file, and a decision was made on the basis of a photograph. It transpired that the photograph was taken of a totally different area from that relating to the planning application. Is there any appeal system if a mistake like that is made?

In addition, is the decision of the local authority taken into consideration by the Bord when overturning that decision? I cannot see how the board could do that. When outside bodies lodge objections, do these groups, like An Taisce, influence the board? These groups would have made their objections known to the local authority before going to Dublin for the matter to continue. Would the board be influenced by such a body over an individual?

Deputy Kelleher: It is good that the planning process has opened up and become more transparent.

Mr. O’Duffy: We indicated to the Minister last year when we made the case for the extra board members that we have as an objective to determine 95 per cent of cases within four months and that the average time for determining cases will be 13 weeks. We are confident that this is achievable provide we get the extra two board members which are now envisaged.

Reference was made to vexatious appeals and there is not much to be happy about as it is difficult to tackle these cases. I am afraid I have not been inspired as regards a solution to that problem. There are ways around it for people who are properly advised. Reference was also made to the occasional case where somebody, particularly a third party, might approach the developer to look for what was described as “soft money”. These cases seldom come to our attention. I have come across two or three cases of a general nature in the past two or three years but we have no evidence. I recall a particular case about two years ago where we got a letter. We were almost at the point of determining the appeal but were asked to hold on for another week because the person concerned hoped to do a deal with the developer. Our attitude was that the person could get stuffed and we determined the appeal the same day. We do not take any cognisance of this type of letter because it can be an abuse of the planning appeal system.

Senator Kiely asked if the board makes every decision. The board members formally make a decision in approximately 80 per cent of cases. However, we are concerned about cases where people are late by one or two days in submitting the planning appeal, something to which we drew attention in our report. We have no discretion in the matter. The proportion of invalid appeals would account for about 10 per cent of cases. About 20 per cent of cases do not require an inspection, while the other 80 per cent are the subject of a report from the board’s professional staff.

The point was raised as to whether the board takes the planning authority decision into account. I believe I addressed that when I said that the record of the planning authorities generally is good in that only about 23 per cent of their decisions are reversed. We take particular note of the views of the planning authorities because those dealing with applications are familiar with local conditions and concerns and the provisions of the development plan. We attach much weight to the views of the planning authorities.

Reference was made to objections by third party bodies, such as An Taisce. An Taisce has been a prescribed organisation for some time and we attach much weight to its views and and to the views of other parties to an appeal. We have upheld the views of An Taisce, particularly in relation to developments in coastal areas where in the board’s view there were certain proposals for insensitive development, that is, development which did not take sufficient account of the provisions of the development plan. I emphasise that third party appeals which are successful represent only about 2 per cent of planning authority decisions.

Deputy Kelleher referred to the designation of certain seaside areas in relation to tourism development. Over the past six to nine months the board has been concerned with a number of proposals for development in a number of seaside resorts. The board is required by law to have regard to Government policy generally in so far as it impacts on the physical planning system. Of the proposals we have received in relation to seaside developments over the past six to nine months, we have refused planning permission for a number of developments at Lahinch, Kilkee and Achill. In these cases the reasons underlying the board’s decisions are set out in the board’s orders.

The question of whether planning has become too conservative was raised. Perhaps our Deputy Chairman will answer that.

Dr. Quinn: The question of the board becoming conservative does not arise because it is up to the developer alone to decide what he wants to build on his site. The planning authority welcome pre-application discussions, so the developer and the planning authority at that stage would, to a certain extent, say what is acceptable on a site. When the application comes before the board, we must accept or reject what is put before us. We do not mess around too much with the design. Generally, we do not refuse an application solely for design reasons. If the developer reads the reason for the refusal, which may relate to density or overdevelopment of the site, they can read into the reason what they need to do on the site in order to get permission.

Acting Chairman: Is there anything else you wish to say?

Mr. O’Duffy: We welcome this opportunity to appear before the committee because members of the board, in particular, tend to live in an ivory tower where we are almost untouchable but I am sure you will appreciate the reasons for this. Having read the committee’s debates and the Dáil debate on the planning Bill, we have certain lessons to learn. We need to be less conservative and more open than we are at present. We will certainly take on board the views you expressed in your submissions and during the discussion in so far as they impinge on planning appeals. I thank you for your constructive comments on the points at issue.

Acting Chairman: On behalf of the committee, I thank you. We have engaged in a good exercise in openness and transparency. I am delighted you read the Dáil debates on planning legislation. I know you are anxious to get the 1997 planning and development Bill through the Oireachtas. The Select Committee will deal with Committee Stage of that Bill on 24 March and we will impress on the Minister the need to conclude all Stages and to get it through the Seanad. For the benefit of Members, the next meeting of the Joint Committee will be on 1 April when we will continue our review of the planning process. I thank Mr. O’Duffy. Dr. Quinn and Mr. Mullally. We appreciate the way in which they answered our questions in an open and fair way. You have contributed greatly to our review of the planning process and we will try to help you in your endeavours.

The Joint Committee adjourned at 2.30 p.m.