Wednesday 11 July 2012

Elaine Byrne: A system which looks after itself

This June article has been emailed to me and I have included it in full below.

Nemo iudex in causa sua. This Latin phrase, which translates as "no man should be a judge in his own cause", is a fundamental principle of natural justice. Except in Ireland.
Housing and Planning Minister Jan O'Sullivan published the long-awaited Planning Review Report last week. The Labour Party has successfully positioned itself as the ethical watchdog of Fine Gael, or has it?
The report examined allegations of malpractice within seven local councils in Carlow, Cork, Dublin, Meath, Galway and Donegal. Civil servants at the Department of the Environment, Community and Local Government conducted this internal review into their local authority colleagues.
They investigated themselves.
The findings? The "rigorous analysis" by the department concluded that the "allegations do not relate to systemic corruption in the planning system". There was no "prima facie evidence of malfeasance in any of the seven local authorities".
On the other hand, the Mahon Report, published three months ago, found that "systemic weaknesses" existed within the planning system. The department officials, it seems, reject the independent planning inquiry by Mahon, which took 15 years, 400 witnesses and 60,000 pages of evidence.
The very idea that civil servants would publicly rebuke the officials that they interact with on a daily basis is simply ridiculous.
Mahon went on to say that there "was little appetite on the part of the State's political or investigative authorities to take the steps necessary to combat it effectively or to sanction those involved."
Well, there still isn't!
Fine Gael and Labour control all of the councils under review, with the exception of Donegal. Why would the government parties embarrass themselves by having independent investigations into the actions of their own councillors?
Mahon concluded that "those involved operated with a justified sense of impunity and invincibility". They still do!
Although the internal report raised "serious matters ranging from maladministration to inconsistency in application of planning policy", it decided not to name any planning official.
This was because the allegations "were not backed up by the evidence cited". But how objective was this internal report? It appears that the civil servants only met with senior council officials and not with any of the complainants.
No one was held accountable, again.
The complainants included the office of the Ombudsman; the local government auditor service; An Taisce; a former TD; architects and members of the public.
Their complaints related to failures of corporate governance within the planning system. This included maladministration; planning laws not enforced; misuse of planning powers; professional planners sidelined; permission granted on flood plains and a general lack of transparency over decisions by planning authorities.
Why were so many of these complaints dismissed? Well, according to the internal report, the planning "process involves, of necessity, an element of interpretation or discretion on the part of the final decision maker".
This is what happens when you investigate yourself, you get to decide the definition of interpretation and discretion.
The 2010 Quinlivan Report in County Carlow went much further. This remains the only independent planning review of a local authority to date. No whitewash here. Names were named. Quinlivan looked at how the council operated, in particular the actions of the then director for planning, Seamus O'Connor.
The report pointed to "a perceived culture of leniency and inaction" with regard to "compliance with, and application of, planning law". Irregular practices and administrative deficiencies included O'Connor having unaccompanied meetings with planning applicants.
His failure to record notes of many of these one-to-one meetings was a direct breach of the Planning and Development Act 2000, which specifies that records must be kept.
Record keeping was evidently a problem in Carlow. "Files get 'lost', this can occur but perhaps they get 'lost' due to being removed from offices," Quinlivan noted.
So, what of the 120 recommendations (120!) made by Quinlivan two years ago?
The department's internal review notes that the "implementation of the report remains ongoing" because "not all of the recommendations have been fully delivered on as yet".
And what happened to O'Connor after he was found to have broken the law? He is no longer the director of planning for Carlow. He is the director for housing and with the exact same salary as before. No consequences.
We should have faith then in the internal review which has promised to implement 12 steps to tackle weaknesses in the planning system.
But these 12 steps do not include the Mahon Report's key recommendation of a Planning Regulator.
The purpose of this independent body is to have the "power to investigate possible systemic problems in the planning system" and enforce compliance with planning policy. Is Mahon the new Kenny Report?
What chance is there of any accountability, or anyone being held responsible when files mysteriously get "lost", when the Government controls the councils under investigation and officials investigate themselves?
The system is looking after itself.
It took the unusual case and sensational evidence of Jenny Forsey to secure the conviction of former Fine Gael councillor Fred Forsey Jr in Waterford last month. It would be rather naïve to assume that he was the only councillor in Ireland to have accepted corrupt payments from a developer in the last 10 years.
The long-term consequences of poor planning decisions impact on the quality of life for thousands of Irish people every day.
These are not historical issues that can be dismissed as part of the past.
They are the outcome of appalling, inexcusable and outrageous decisions made by council officials and county councillors.
For instance, the ghost estates that litter the country, like the 14-house development at Annagh Banks in Castlemaine, Co Kerry, which goes on sale next month for €50,000 -- or €3,500 per house. Or the heart of Limerick city, which has been hollowed out by erratic development in the suburbs.
Families are stuck in homes built on flood plains.
The pyrite report, due in July, will outline how inferior building materials have caused severe structural damage to thousands of homes. Priory Hall was built under the nose of Dublin City Council, who failed to enforce building regulations.
These decisions were made by local politicians and council officials. And the Labour Party, of all parties, is complicit in the decision to leave the past safely where it is.
Dr Elaine Byrne, Department of Political Science, Trinity College Dublin. Twitter: @elainebyrne. Political Corruption in Ireland 1922-2010, A Crooked Harp? (Manchester University Press, April 2012)
Read the article @ The Irish Independent

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