Thursday 11 June 2009

Three heads are better than two when making planning decisions at the appeal stage

Having two An Bord Pleanála members, and not three, ruling on ‘simple’ cases will cause problems

LIGHT TOUCH regulation has brought the Irish – and the world – banking system to its knees. Those who led the charge away from tried and tested conservative procedures are now the objects of public vilification: the banks, their directors and senior management, the regulators and politicians. Our growth was based on the construction industry and, consequently, the speculators and builders who drove the Celtic Tiger to its final stage of madness are also responsible for the situation in which we now find ourselves.

In all the recriminations, there is one public body in the development system which has emerged unblemished: An Bord Pleanála. Established in 1977 to take over deciding appeals from the then minister for local government, the legislation ensures the board’s independence and autonomy by provisions such as prohibiting ministerial involvement in individual decisions and making it an offence to contact an inspector or board member to improperly influence the decision on an appeal.

In the 2009 Planning and Development Bill published last week, the minister for the environment had a worrying amendment to the appeals procedure. Section 28 proposes reducing the quorum for decision-making in “simple” cases from three to two board members.

The human psyche automatically rejects two-person decision-making authorities for the reason that, unless both are of one mind, they are frozen into indecision. There is also the lurking spectre of collusion.

Since Roman times, the triumvirate has been seen as the ideal governing model – efficient yet responsive, immune from the dangers of dictatorship and the complexities of committee decision making. That is why the two person tribunal is a rarity and a three-person one is the norm.

The 1976 Planning Act created a six-person board and gave it charge of its own procedures. Under the chairmanship of high court judges Denis Pringle and his successor, EM Walsh, the board determined that a quorum for decision-making would be three members. The board was undoubtedly influenced by its status as a quasi-judicial appellate body and by the fact that the State’s court of final appeal, the Supreme Court, is at a minimum composed of three judges with five being required for certain matters. The three-member quorum was then incorporated into the 1983 Planning Act.

The minister’s purpose in reducing the quorum is to speed up decision making by the board. All organisations need to review their procedures from time to time to maximise efficiency but it is questionable whether this change would have the desired effect and it could do the board much damage.

First, a new internal administrative process would have to be set up to select appeals suitable for mini-board treatment. This raises a number of issues. What about borderline cases? Would appellants be told they were only going to get the attention of two board members before the decision? Would some who could afford it seek judicial review of this preliminary categorisation? Would it only be when the decision is given that the parties would be told they were given the quick treatment? Would mini-boards be seen as a second class of decision making?

Second, the procedure surrounding mini-boards could be counter-productive. There could be no question of giving the chair of a two-person board the customary casting vote, because it would completely distort the principle of collegiate decision-making. The Bill recognises the problem here in referring to voting at such a mini-board being “equally divided”. Does that mean there would be no chair? If the two board members disagree, the case would have to go for a further meeting, and be given full consideration again.

The Bill proposes that this would be by a standard three member board, which is an inequitable solution. It would automatically elevate the additional third member to a controlling position, because they would have to agree with one colleague and disagree with the other. Some deadlocked mini-appeals would inevitably have to go to a five-member board. This might well involve more hours per board member being spent on the smaller types of appeal than they do now. So the logistics of the new procedure could see an average of more rather than less time being given to this new category of appeal and result in slower rather than faster decision-making.

In tandem with the downturn in the economy, the workload in the planning system (including appeals) has decreased significantly since the start of the year, probably by up to one-third. Any remaining delays in determining appeals will have been eliminated as soon as the backlog from the boom years is disposed of, which will happen during the coming months.

Dr Berna Grist BL is senior lecturer in the School of Planning and Environmental Policy, UCD. From 2001 to 2006, she was a member of An Bord Pleanála.

Irish Times

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