The Worst Laid Plans

Fintan O'Toole on one reason why Dick Spring should scrap An Bord Pleanala.

When An Bord Pleanala was first established, there were hopes that political pressures and the shadowy influence of property developers would at last cease to affect planning decisions. Until January 1 1977 the Minister for Local Government had the final say on all appeals against planning decisions by local authorities. Since that date all appeals are decided by the Board, which is in theory independent and impartial. But planning appeals under An Bord Pleanala have been as controversial as ever they were under Ministers for Local Government. Its independence, effectiveness and competence are now seriously in question.

In the six years of its existence, one case, between local residents and property speculators over a development in Harcourt Terrace, Dublin's only Regency street, has dogged the board and done more than any other to bring it into disrepute. Last month in the High Court, the Board survived a major challenge on this case but did little to enhance its own reputation.

Numbers 10 and 11 Harcourt Terrace were acquired by the Gallagher Group, staunch supporters of Fianna Fail, in 1973. The entire Terrace was listed by Dublin Corporation as a priority for preservation in its Development Plan but this did not prevent eight major planning applications for permission to build flats and offices on the site being lodged with Dublin Corporation, All of the plans, submitted through Desmond FitzGerald, architect brother of the present Taoiseach, were flatly rejected by the Corporation on the grounds that they were in conflict both with an important residential amenity and with the Corporation's own plans to preserve the Terrace.

In May 1977 An Bord Pleanala, in one of its first major decisions, refused an appeal by the Gallaghers against the latest of these rejections. It did so, however, in a manner which was regarded at the time as sensational, and which caused a storm of protest from councillors.

In turning down the appeal, the Board also saw fit to advise the applicants, Merchant Banking Limited, owned by Patrick Gallagher, what changes it should make in its plan in order to make it acceptable to the Board. Effectively An Bord Pleanala was interpreting its powers in such a way that it gave itself the right to suggest grounds to the Gallaghers for a further appeal should Dublin Corporation again refuse permission for the development. In making his next application for permission to build the offices, Desmond FitzGerald prefaced the plans by saying 'This building has been designed not in accordance with the requirements laid down by the Dublin Corporation some time ago but in accordance with the requirements of the Planning Board.'

A precedent had been established for An Bord Pleanala to go beyond what had been originally perceived as its functions into the area of initiating planning policy and effectively prejudging future appeals without having heard the evidence for and against. In September 1980, again on appeal from Dublin Corporation, An Bord Pleanala granted permission for the Harcourt Terrace development. By now the applicants were no longer Merchant Banking but a company called Ireland Holdings Limited. Senior Counsel for Merchant Banking told the oral hearing of an earlier appeal that 'the new owners are a company within the Gallagher Group'. The Gallaghers were playing the familiar game of switching property from one front company to another, but this time the game caught up with them.

Rico Ross, a resident of the Terrace, who with his wife Eileen has been doggedly fighting the office development, revealed to An Bord Pleanala's oral hearing that the applicant company, Ireland Holdings did not in fact exist, having been wound up in 1973. Incredibly, the Board went ahead and granted the permission. Rico Ross challenged this decision in the High Court, and in a decision which was a serious embarrassment to An Bord Pleanala, Justice Gannon found in July of last year that the Board had acted in breach of its statutory duty in processing the appeal against an invalid application.

Meanwhile, however, Ireland Holdings had been reincorporated (two days before receiving the invalid permission from An Bord Pleanala), changed its name to Hightone Holdings and applied yet again to Dublin Corporation in an effort to pre-empt the High Court case then in progress. An Bord Pleanala granted permission for this new plan on March 12, 1982 and Rico Ross took this second case to the High Court. In May he was granted a conditional order by Justice Barrington quashing the permission on the grounds that the newspaper advertisement by Hightone Holdings was defective and misleading; that the company was not the owner of all the site involved; that they had not a sufficient legal interest in the lane at the back of Harcourt Terrace to make an application which included its use and that they had failed to comply with permission regulations. On January 18 last, Justice Gannon refused to make this order absolute, and the permission granted by An Bord Pleanala in March last year was allowed to stand.

In making his decision, Justice Gannon ruled that it was not for him to hear the case as if it were an appeal from a decision of An Bord Pleanala. In upholding the permission, he was not making a decision on whether An Bord Pleanala had sufficient evidence on which to base its decision. Rico Ross contended in court that An Bord Pleanala did not treat the case as if it were viewing it for the first time. He also maintained that Hightone Holdings had been incorporated to serve an illicit purpose (to circumvent the provisions of the planning law) that it was therefore an invalid company and that the property therefore still belonged to the Gallagher Group and should be in receivership. Justice Gannon ruled that 'It is of no consequence whether An Bord Pleanala had sufficient evidence that the applicants were the owners of the site.' The fact that An Bord Pleanala did not, in fact, seek to satisfy themselves that Hightone had established ownership over all of the site is supported by a letter which Rico Ross received from the Board's solicitors seeking to have Hightone Holdings joined in the action because the Board itself was 'not in a position to rebut the allegation in relation to the ownership of the property and the entitlement to apply for permission.'

In his judgement Justice Gannon said that the developer had initially tried to take a short cut and had been forced (by Rico Ross, not by An Bord Pleanala) to follow the correct route. 'The short cut', remarked Rico Ross to the judge, 'was right across my throat.'

An Bord Pleanala is the final authority for all planning development and can only be challenged in the High Court on points of law. Its decisions can legally be taken by only one member; of its nine present members, five were appointed on the days he left office in 1981 and 1982 by the former Minister for the Environment Ray Burke; none of them has any obvious qualifications for the £18,000 a year job.

The battle for Harcourt Terrace has shown that the Board makes serious mistakes and that the High Court offers only limited redress.

So long as An Bord Pleanala remains as it is presently constituted, planning by local authorities will remain a joke.