An Bord Pleanála spent more on legal costs in 2022 than ever before

By Cillian Sherlock, PA

The interim chairperson of An Bord Pleanála has said the planning body spent more on legal fees in 2022 than it had in any other year.

Oonagh Buckley said the board spent “almost €10 million” on legal costs for 2022.

At the Public Accounts Committee (PAC), Ms Buckley said: “Sadly, yes, this is the most we’ve ever spent on legal fees.

“Approximately half of that would have been to our own solicitors and barristers. So half our legal costs, and half the accrued costs to persons who were either successful or where we have conceded the cases.”

The committee was told the board spent €7.7 million on legal fees in 2021.

She said the board’s average annual legal costs over the last three years have increased by about two-and-a-half times.

Comptroller and Auditor General Seamus McCarthy said the board paid out €1.35 million in statutory penalty payments over 2021 and 2022 because decisions on strategic housing development applications were not made in time.

Only one penalty, valued at €10,000, came from 2021.

Ms Buckley said all the penalties, including a further €80,000 this year, had been paid.

However, she also said many other payments have yet to be settled and the board is required to make substantial ongoing provision for those outstanding liabilities.

Ms Buckley said there had been a significant increase in the volume of legal challenges to board decisions.

She said it was faced with an increased caseload of judicial reviews, many concerning “complex matters”.

“These applications for judicial review of the legality of decisions involve significant detailed legal scrutiny of complex matters of procedure and interpretation relating to national law and policy, European Union environmental directives and other issues in particular arising from the strategic housing development application process.

“The board is now increasing its capacity to handle these cases and I am determined we will improve processing and decision-making in future cases.”

She said the board had not adapted to a “fundamentally changing” litigation environment.

“The board has to adapt, it has to bring in additional legal resources internally,” she said.

Ms Buckley said the board also conceded too many cases.

“It needs to make its decisions more robust, make its procedures more robust and it needs to learn from those errors, so that it won’t make them in future.”

She said she did not believe the number of judicial reviews would decline but said the appointment of a new director of legal services would make the board more effective.

'Activist judges'

She also said there are “two very activist judges” working on the planning list that were making “very far-reaching decisions”.

Ms Buckley said 2022 was a “particularly difficult year” for the body as its determination of cases fell by 25 per cent.

She said the departure of members of the board in 2022 had a “serious detrimental impact” on the board’s reputation and overall performance.

“The board attracted major regulatory and public attention in relation to its operations and procedures, in particular in relation to potential conflicts of interest that may arise during the course of the decision-making process.

“It is fair to say that the morale of staff was also badly affected.”

Ms Buckley said she had made efforts to make sure this does not reoccur.

She said the board’s ability to comply with time frames has fallen and it will be a “significant challenge” to reverse the downward trend.

She said only a “very small handful” of cases were decided within statutory time frames.

However, she said a rapid appointment of new board members will allow it to resume a much higher level of activity.

She said it had determined applications relating to about 6,000 units in the last three to four weeks.

Ms Buckley was told she had a “major rebuilding task” ahead.

Green Party TD Marc Ó Cathasaigh said the biggest challenge would be rebuilding public trust in the planning system and asked if a corporate apology would be appropriate.

Ms Buckley said an apology to people who had applications delayed had been issued on the board’s website and she was “happy to repeat that”.

Asked about last week’s publication of the board’s latest annual review which identified no weaknesses in process, Ms Buckley said this was carried out by the previous board and a “rather different” view will be included in the 2022 report.

Apology

Ms Buckley also apologised for remarks relating to judicial reviews taken by lawyer Fred Logue.

It was reported that Ms Buckley told the Irish Planning Institute conference that Mr Logue’s firm was responsible for half of judicial reviews against the board and that this was lucrative business.

Social Democrats TD Catherine Murphy raised the matter at the PAC, defending the judicial review process and added the remarks were “shooting the messenger”.

Ms Buckley said she was “very sorry” for the comments.

“I’m very sorry that I became the story, that should not have been the case.

“And I’m very sorry I namechecked somebody who was not in the room to answer to those questions, I shouldn’t have done that.

“And I have to learn a lesson from that which is not to namecheck people.

“And secondly, in future I have to understand that in this role people are interested in everything I say, and I should write a script and I should stick to that script.”

Ms Buckley said she has “clearly got to be careful” about everything she says on judicial reviews going forward.

She said she agreed with Mr Logue’s assessment that there was going to be a lot of litigation in the space.

“I was saying I agree with this gentleman and what he says and the context in which I’m saying that was saying An Bord Pleanala hasn’t been very good at adapting to this environment.”

Mr Logue later said he “fully accepts” the apology.