Solicitor claims report remit had been changed to satisfy chairman's preferences, making its completion impossible, writes COLM KEENA, Public Affairs Correspondent

THE RELATIONSHIP between the chairman of the Dublin Docklands Development Authority, Niamh Brennan, and the chairman of Mason Hayes and Curran solicitors, Declan Moylan, appears to have broken down following a meeting in August of last year, correspondence between the two indicates.

The correspondence, released under the Freedom of Information Act, shows Brennan wanted changes to how a report being drafted by Moylan treated a controversial deal between the authority and property developer Liam Carroll.

The agreement concerned a major development in the docks that was to house a new headquarters for Anglo Irish Bank.

Moylan had been commissioned in October 2008 by the authority to produce a report on the development by Carroll’s North Quay Investments Ltd in the North Lotts area of the docklands.

Moylan’s report was nearing finalisation when the then chairman of the authority, Donal O’Connor, resigned to take on the position of chairman of Anglo Irish Bank.

When Brennan was appointed to the role of chairman in March 2009, Moylan wrote to her suggesting he might present his latest draft of his report to the authority’s board for final approval. As matters transpired, that approval was never to be granted.

Moylan had been engaged after the High Court ruled that planning permission for the Carroll development should be rescinded. The ruling was made in a case taken by Seán Dunne’s Mountbrook Homes against Carroll and the authority, and was based on the court’s view that the controversial agreement entered into by the authority with Carroll compromised the independence of the authority in its role as a planning agency.

The May 31st, 2007, agreement was, according to the current board of the authority, entered into by the authority’s executive without the knowledge of the then board. It provided for the transfer by the Carroll company of a strip of land in the North Lotts to the authority. In return the authority’s executive was to seek to amend the planning scheme for the North Lotts area, so that Carroll’s eight storey development could eventually be doubled in height.

Brennan met Moylan on April 20th and they discussed his draft report. Brennan wanted certain factual matters set out with greater clarity in Moylan’s report, such as how the Carroll deal with the authority came to be negotiated.

By late July 2009 Moylan, who had to conduct some additional interviews, had made changes to his draft report. Brennan, meanwhile, had read through the transcripts of the court case that had been taken by Dunne. When Moylan sent her an update on his report, she responded by sending him some extracts from the transcript.

“I do not think the full impact of the agreement is exposed in your report. Your report refers extensively to the strip of land but what was to be delivered to the developer in return is not so clear.”

Brennan said Carroll’s company and the proposed tenants for the Carroll building, which included Anglo, may have been considering their plans for the building as far back as late 2005. This was the same time discussions were initiated within the authority on the revision of the plans for the North Lotts area.

“It is not clear to me why the North Lotts planning scheme was singled out for revision, why the executives brought a paper to the board on November 10th, 2005, who was instrumental in this, and what their motivations were in initiating a revision, ” said Brennan.

She expressed concern about the emphasis given in the draft report to the authority’s gain of the strip of land, while the gain to Carroll – an undertaking by the executive to change the North Lotts scheme so his building could be doubled in size and be predominately commercial – was hardly referred to. What Carroll was getting “seems to be quite out of balance to the ceding of a rather small strip of land and only the bit above ground level”.

“I am also still not clear as to who were the drivers in relation to the agreement,” she wrote. “In my opinion one of the most revealing pieces of text in your report is the statement by Neil Mulcahy in his e-mail of May 8th 2007 . . . ‘the ceding of the strip would be a condition if the volume of development necessary to satisfy Anglo was permitted . . . ’ This suggests that Anglo Irish Bank is the driver in relation to the agreement and is the entity to be satisfied.”

She said Moylan, in his report, stated that the former chief executive of the authority, Paul Maloney, came up with the idea for an agreement with Carroll, but queried why, then, it was David Torpey, Carroll’s assistant, who e-mailed the heads of the agreement to Mulcahy. Why was it not the authority that was e-mailing the heads of the agreement to Carroll and his company, she asked.

She raised a number of other questions. Moylan had not initially interviewed Seán FitzPatrick, the former chairman of Anglo and former director of the authority. He did so at Brennan’s suggestion.

“I note your observations that Mr FitzPatrick had very little input into choosing the site for Anglo Irish Bank’s head office, its design and any other aspects of its development. By way of comment, it seems to me to be a very unusual hands-off approach by a chairman of a publicly listed company of the size and significance of Anglo Irish Bank to a significant commercial transaction for the bank.”

The two met on August 24th. Moylan wrote to Brennan on September 4th and said he had given careful consideration to what had been discussed. He had also taken legal advice.

His original remit from the authority, he wrote, was for a “lesson learnt” report that would include forward-looking recommendations. “I was specifically asked not to conduct the exercise or any interviews with a view to apportioning blame or liability.”

He was given clear directions as to the “tone and layout of the report” he was to produce, though his independence was in no way compromised. (The directions as to tone and layout came from O’Connor, later correspondence from Brennan states.)

Moylan said he had interviewed parties on this basis. He felt Brennan wanted him to produce a document that would contain material “to satisfy your own preferences” and he believed this would compromise his integrity. He was also concerned his client – the authority – might rebut his findings. He had decided the proper course of action for him was to decline to take the matter further.

Further correspondence between the two – concerning how the work that had been done could produce a report that could be accepted by the board – led nowhere.

Moylan offered not to bill for the work he had done since Brennan’s appointment, despite it being of a “large value”.

The North Lotts affairs is now being investigated by the Office of the Comptroller and Auditor General.

“I note your observations that Mr FitzPatrick had very little input into choosing the site for Anglo Irish Bank’s head office, its design and any other aspects of its development. By way of comment, it seems to me to be a very unusual hands-off approach by a chairman of a publicly listed company of the size and significance of Anglo Irish Bank to a significant commercial transaction for the bank.

– Brennan to Moylan

"I was specifically asked not to conduct the exercise or any interviews with a view to apportioning blame or liability.

- Moylan to Brennan