Planning regulator must have investigative powers

Opinion: The Mahon tribunal specified a quasi-judicial role for the watchdog. Without this, the post will lack necessary teeth

Wed, May 15, 2013, 08:01

It is now 18 years since a Newry firm of solicitors placed an advertisement in The Irish Times offering a £10,000 reward to anyone who could provide evidence of corruption in the planning process that would lead to the conviction of those involved.

Why Newry? Because the sponsors tried and failed to get solicitors in Dublin to act for them – the whole issue was too hot to handle. Across the Border, however, there were no such sensitivities, so Donnelly Neary & Donnelly readily agreed to act as the legal conduit.

Those of us who had observed the irresponsible land-rezoning activities of Dublin county councillors knew there was bribery going on, but we couldn’t prove it. Now the intriguing advertisement, placed on behalf of anonymous activists, offered a prospect of nailing it down.

I knew who they were, of course – Colm Mac Eochaidh, a barrister who has since become a High Court judge; and Michael Smith, a non-practising barrister who subsequently became national chairman of An Taisce. I also knew that allegations were coming in thick and fast.

They included very serious allegations from a retired businessman, James Gogarty, who said he had bribed former council chairman Ray Burke to have lands in Swords rezoned; he would later become one of the star witnesses at the planning tribunal, finally set up in 1997.

I went to Brendan Howlin, then minister for the environment, and told him that I knew Mac Eochaidh and Smith and that they had already accumulated a substantial dossier. But neither Howlin nor his successor, Noel Dempsey, would agree to meet them to discuss it.

In any case, the Department of the Environment had no investigative mechanism to look into serious abuses of the planning process. Three Garda inquiries over the previous 20 years – the first of them in 1974 with Ray Burke as the chief suspect – had also got nowhere.

Rampant corruption
Eventually, in late 1997, the establishment of a judicial tribunal became inescapable. Nobody imagined then that it would go on for 15 years, costing taxpayers €250 million. But at least we all now know for a fact there was rampant corruption in the land-rezoning era.

Perhaps the most important recommendation made by the tribunal in its March 2012 final report was that there should be an independent planning regulator with wide powers to investigate “systemic problems in the planning system, including possible corruption”.

The regulator would “conduct reviews (including spot-checks) of any aspect of the work practices and/or procedures of planning authorities, including those relating to applications for, refusals of, and grants of planning permissions, and to do so without advance notice.”

He or she “should also keep the planning system under review and carry out relevant research activities in order to ensure that corruption risks are identified and corrected as they arise and, more broadly, that the planning and development system is functioning optimally”.

Crucially, the tribunal wanted the regulator to have “wide powers of investigation, including the power to question witnesses and to compel the production of documents”; in other words, he or she would have a quasi-judicial role in the planning system.

None of this was mentioned in last week’s announcement that the Government has decided to establish a new post of planning regulator, in what Minister of State for Planning Jan O’Sullivan described as a “milestone” in implementing Mahon tribunal recommendations.

The proposed regulator’s investigative role was alluded to only in passing. His or her remit would be to provide an “independent appraisal” of city and county development plans and regional planning guidelines as well as “planning research, education and investigation”.

Minister for the Environment Phil Hogan said the regulator’s role would be to “review and assess all forward planning functions by local authorities [and] advise the Minister to reject or overturn part or all of a plan where it is not up to scratch”. The Minister would have final say.

A spokesman said the proposal was “at the very early stages”, but it was intended the regulator “will have power to investigate matters of wider public interest [but] in a way that would not open another avenue for examining specific planning decisions”. This is very far from what the tribunal recommended and appears to suggest the Department of the Environment – which has adopted a “hear no evil, see no evil” approach to allegations of wrongdoing – doesn’t want a regulator with real powers of investigation.

When former minister John Gormley sought to appoint external inspectors to carry out investigations into alleged planning irregularities in seven counties, the process was a long drawn-out one, not concluding until after the Green Party’s exit from government in 2011.


Internal ‘review’
The independent investigations were dropped by then minister of state, Labour’s Willie Penrose, in favour of an internal “review” – conducted by the department itself – into various allegations. In the end, this cleared the local authorities with only minor admonitions.

An “evaluation” of the review by planning lecturer Henk van der Kamp, published in March, concluded that “the system as it is working is basically sound” – even though the review had failed to analyse the substance of complaints made by An Taisce and others.

Complacency will only be reinforced if the planning regulator is not given the broad powers envisaged by the Mahon tribunal.

Frank McDonald is Environment Editor

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