Irish Examiner - 27/03/06
IF Mary O’Leary ever runs short of reasons to be cynical about the planning system, she casts her mind back to January 2004 to restock.
As chairwoman of CHASE, the Cork Harbour Alliance for a Safe Environment, she had her ears peeled for a phone call on the evening of January 15, when she was due to hear the outcome of the group's appeal to An Bord Pleanála against Indaver Ireland's plans for a waste incinerator at Ringaskiddy. No call came.
The following morning, she was up with the lark, reassuring herself that the board's deliberations must have run too late the night before for them to call. But still the phone stayed silent.
Her young son was home sick from school when her doctor husband recognised what he feared were the early signs of meningitis and against all her instincts, Mary saw them off in an ambulance and stayed behind to mind the phone instead. Still, it didn't ring.
She, and the rest of CHASE and the 23 other groups and individuals who had opposed the incinerator, heard the result of their appeal on the Pat Kenny radio show where Indaver boss John Ahern was waiting in studio to give his delighted response.
"That was really infuriating," says Mary, who would later hear that her child did in fact have meningitis and septicaemia, though fortunately he recovered well.
Infuriation ran side by side with bafflement. Mary had been convinced that the Bord Pleanála inspector who chaired the three-week-long oral hearing on the appeal had seen the objectors' point of view.
She was right. Senior planning inspector Philip Jones said planning permission should be refused and he gave 14 detailed reasons why. His reasons ranged from local environmental issues to public safety concerns to national waste-management policy, and he was emphatic that the incinerator should not be built.
The board, by a nine-to-one majority, disagreed on every point, leaving Mary bewildered. "What was the whole point of this exercise?" she asks.
"The inspector was the man who sat for days, listened to all of the evidence, heard the presentation, seen the amount of work that had gone into it and had actually been to Ringaskiddy.
"He thought very long and hard about his report, wrote a very comprehensive report, reported very accurately and then it gets ignored.
"You think: 'what was the point in him going through that process?' It was very much lip service to the notion of public participation in the planning system when the one person that we, the public, got to communicate with was ignored by the board."
Mary is not alone in her frustration. Anecdotally, a perception has developed that Bord Pleanála inspectors are used as a convenient buffer between the public and the decision-makers rather than as the real brains behind the appeals system.
Numerous high-profile cases have emerged in recent years where the decisions of the board ran contrary to the views of the inspectors, leading some observers to suggest that the trend is on the increase.
Not so, according to the board's own records. In 1996, just 11% of inspectors' recommendations were overruled by the board and the ratio has remained about the same.
It was 9% in 1997, 10% in 1998, 9% in 1999, 11% in 2000, 9% in 2001 and 11% in 2002. The board has not scientifically recorded rates for the past three years but board secretary Diarmuid Collins says: "A random check shows the average is still around 10%. There hasn't been any change in the last few years."
And yet, it is hard to ignore the succession of developments that have been approved by the board in the past few months in Dublin alone when the inspectors recommended refusals.
A 577-home development on the grounds of St Loman's Hospital in Dublin, proposed by Glenkerrin Homes, was one. The demolition of the Park Lodge Hotel on the city's North Circular Road and its replacement with a €40 million apartment development was another.
Eimear Haughey's house plans on the estate of her father, former Taoiseach Charles Haughey, were on a much more modest scale but the development was significant as there are two major housing, hotel and leisure developments under appeal on the same lands.
The explanation may lie simply in the fact that these are high-profile cases that attract attention in a way granny flat extensions and garage conversions don't.
Without firm statistics for the most recent years, Irish Planning Institute president Henk Van Der Kamp is reluctant to draw conclusions, although he agrees there is a perception that the board's inspectors are being overruled more frequently.
He says this would not necessarily be a cause for concern.
"It is simply a consequence of having a discretionary planning system," he says.
"The complexity of appeals is increasing because of the way Ireland is going and the extent of development that is going on, and when a development is more complex, there tends to be a greater degree of discretion on the question of how it should go."
The board's exercise of discretion is nothing new. Planning acts going back to 1976, the year before the establishment of An Bord Pleanála, state that an inspector's role is to provide a report and recommendation to the board, and that is as far as their power goes.
The difficulty some commentators have with that system is that the salaried inspector is the qualified and experienced planner who has hands-on knowledge of the proposed development while the Government-appointed board members make a decision based on paperwork.
"The board are clearly motivated by political considerations more so than an inspector would be," says Ian Lumley, heritage officer with An Taisce.
"If something is in the National Development Plan, they would see a political reason to approve it whereas an inspector is more likely to see the local reason not to approve it," he explains.
In fact, a lot of effort has gone into distancing board members from party political influence, whatever about their general concerns with the affairs of State.
Each of the 12 members holds a temporary position and while they are appointed by the Government in the case of the chairman, or by the Minister for the Environment in the case of the ordinary members, the appointments are made from shortlists drawn up by a wide range of organisations representing environmental, professional, community and local government interests.
Increasingly, the members have technical expertise in planning and the current board has several former senior Department of Environment officials, an engineer, four architects, two former senior An Bord Pleanála inspectors and a planning lecturer.
This raises the question of why they would differ so radically in some cases from a fellow planning expert such as one of their inspectors.
An insight from the inspectors themselves would be valuable but under the terms of their employment, as Philip Jones who worked on the Indaver case explains, they cannot comment publicly.
Not even when the appeal is old news and the inspector is now working in a different jurisdiction.
Andrew Hubbold, a planner with RPS consultants in Birmingham, recommended the refusal in 2002 of a massive mixed-housing, commercial and industrial development which was to increase the size of Clarina village in Co Limerick by five.
His recommendation was overruled by the board and the development has been proceeding as planned but Mr Hubbold said he could not speak about it.
"I'm still an active inspector. I can't say anything," he said.
There are about 60 others like him inspectors who work in the private sector here and in Britain but are employed on a per job or consultancy basis by An Bord Pleanála.
External inspectors carry out roughly one-third of all inspections (35% in 2004, 32% in 2003). The board has 52 staff positions, five of them recently created, but 10 are vacant because of the shortage of trained and experienced planners.
According to board secretary Diarmuid Collins, the overrule rate is the same for external inspectors as staff members.
There are, however, differences in board decisions from case to case that have caused consternation.
Ballina councillor Willie Nolan was "absolutely gobsmacked" last November when permission was granted for the conversion of the 170-year-old 'Ice House', once the home of Moy fishery managers, into a hotel, despite the inspector's recommendation that it be refused.
A similar scheme a short distance away over the border in Co Sligo was turned down for much the same concerns raised by Nolan and his 50-strong band of local objectors.
"The inspector who came down said it (the Ice House development) contravened the town development plan, the traffic management plan, the protected views and a whole lot of other things.
"I would understand if she was against it on just one or two points that the board felt weren't that serious but she totally dismissed it. She was 100% against it."
The private planning consultant whom the objectors hired for 5,000 to make their case had raised the same issues and Nolan says the board's ruling did not explain why they saw matters so differently.
That point comes up time and again. Mary O'Leary found the explanations for the rejection of Philip Jones's recommendation abrupt and limited.
For example, Jones summarised the eighth of his 14 objections as: "The proposed development, by reason of its bulk, scale, height, design and location, would be visually obtrusive and seriously injurious to the visual amenities of the area, would constitute a visually discordant feature within the harbour landscape and would detrimentally impact on the preservation of views and prospects obtainable from scenic routes Nos A53 and A54 indicated in the County Development Plan 2003, which it is necessary to preserve."
The board stated their rebuttal as follows: "In relation to visual impact, the board had particular regard to the industrial zoning objective for the area, the pattern and scale of existing industrial developments in this part of the Cork Harbour area, the topography and the long-distance nature of any open views of the site in deciding not to accept the inspector's reason No 8."
Enlightening? Mary didn't find it so.
"An Bord Pleanála's reasons for granting permission were totally unacceptable. They didn't rebut Philip Jones's points in any detail," she says.
"They do not give any substantial grounds as to why they have decided against them. It just doesn't seem like a considered response."
Hank Van Der Kamp says: "There is no doubt about that people do find it frustrating that they don't get detailed explanations.
"It is also a frustration when it comes to advising clients on the next step of the process. The board's decision sets a benchmark for the future use of the land so as much guidance as possible would be very helpful."
Ian Lumley of An Taisce agrees: "We would like to see the situation improved so that when the board does vary a recommendation, there would be greater transparency.
"All it is at the moment is a memo. We need a detailed rebuttal."
The board will be required to give a detailed account of themselves in the Indaver case, however, as its opponents have won the right to a judicial review of the decision and are awaiting a slot in the High Court calendar for what is expected to be a complex hearing lasting several days.
"We shouldn't have to go to court to get An Bord Pleanála to listen to its own inspector.
"They pay him to advise them," says Mary O'Leary.
"Now we're all going to have to pay to make them heed him."
Harbour Alliance for a Safe Environment