When An Bord Pleanála was mired in turmoil last year a report for planning regulator Niall Cussen pointed to a glaring gap in the institution’s code of conduct.
Although board members could not rule on cases in their own “immediate neighbourhood”, the limits that might apply in such cases were not defined. “In some instances a board member may only consider a particular street as being their immediate neighbourhood, while in contrast another board member can view an entire county in which they resided as off limits for decision-making,” the report said.
Such finding seemed to reflect dysfunction in the heart of a quasi-judicial body which has the power to make or break high-stakes planning cases.
A second report for the regulator by the same authors found a “crisis of public and political confidence” in An Bord Pleanála and “an internal crisis”.
Now An Bord Pleanála has introduced a new code of practice, one task among many it faces in the long road to recovery after crisis. The code will apply not only to board members who decide cases but to all other staff members, including planning inspectors who prepare decision files.
Days after former An Bord Pleanála deputy chairman Paul Hyde received a two-months prison sentence for failing to declare certain property interests in 2015 and 2018, the new code aims to ensure there is no repeat of the debacle.
Hyde infamously failed to declare a conflict of interest when signing off a decision on a planning appeal taken by his sister-in-law. That case proved deeply damaging to An Bord Pleanála and to Hyde himself, whose work was stopped by cutting off his email and phone. He stepped aside temporarily and resigned two months later.
The new code of conduct compels board members to seek a ruling from the chair of An Bord Pleanála “in the case of any doubt/queries” on a particular file. “Where any question arises the matter must be documented in memo form, including any ruling on the question and a copy forwarded to the secretary for recording,” the document says.
Although Hyde had long denied any wrongdoing in his declarations to An Bord Pleanála, he pleaded guilty last week to two charges. He has appealed his sentence.
Hyde handed down a huge volume of decisions as deputy chairman and an ordinary board member of the authority before then. Despite his guilty plea and sentencing, every one of his decisions still stands. There is no provision in planning law to reopen any decision once the statutory period for a court appeal has expired.
But An Bord Pleanála, in which he held the second highest role for more than three years, is still living with the fallout from the affair. In the middle of a housing crisis that seems only to worsen, the difficulties faced by the authority have implications beyond the narrow realm of planning.
The body appears to have been paralysed by disruption last year, with unscheduled and scheduled board departures leading to a sharp downturn in the number of settled cases. With so many files delayed, the consequences for housing delivery are clear.
The task of clearing that backlog is a now a big priority. That question will be in focus when the body goes before the Oireachtas Housing Committee on Thursday.
Yet more questions centre on who exactly will be next to lead the body and under which mandate. Interim An Bord Pleanála chairwoman Oonagh Buckley leaves in early September to take command of the Department of Environment, Climate and Communications.
Succession is a matter for Minister for Housing Darragh O’Brien. But it remains unclear whether he will appoint another interim chair or new permanent chair in anticipation of sweeping new laws to overhaul the planning regime and give An Bord Pleanála a new name.
“The department is considering whether a need arises to appoint a further interim chairperson between September and the appointment of someone to the full-time position,” Mr O’Brien’s office said.
Hyde’s appeal against his sentencing means the Minister will wait before publishing a report on the then deputy chairman that he commissioned last year from senior counsel Remy Farrell.
But Farrell is not the only barrister to look over the inner workings of An Bord Pleanála. A separate report for Buckley by Lorna Lynch SC is awaited after she was asked to carry out a “scoping investigation into a substantial number of files”. An interim report is expected this month and final findings in the autumn.
In April Buckley told the Dáil Public Accounts Committee that she has asked that the Lynch report “should be capable of being published”. However, she said “that event may need to be deferred if any disciplinary or other action” follows the Lynch report.
The new code of conduct is but piece in the jigsaw.