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An Bord Pleanála faces task of rebuilding in wake of Hyde episode

Further action in relation to planning board may be needed following ‘confidence-building’ measures proposed by Minister

The beginning of the end of Paul Hyde’s time in An Bord Pleanála (ABP) came late one Friday night in May but it was only after an intervention from Minister for Housing Darragh O’Brien.

In new disclosures that call into question how ABP chairman Dave Walsh managed serious claims against his deputy, it emerges Hyde remained in line to consider planning cases days after he informed the board of an undeclared conflict of interest in an appeal taken by his sister-in-law.

In political and planning circles, that particular matter was considered highly damaging to Hyde and to ABP. But he remained in post as deputy chairman of the planning appeals body — and there was disquiet in the Department of Housing that he was still in line to decide on cases.

Hyde has denied any wrongdoing, disputing claims of impropriety in his legal declarations to the planning board and allegations he was conflicted in some cases.

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An architect by training, Hyde grew up in Cork. He is well-known there in property circles and well-connected politically. He once co-owned a yacht with Minister for Foreign Affairs Simon Coveney, who appointed him to the board of the Irish Marine Institute in 2012. In 2014, the then minister for the environment, Phil Hogan, appointed him to the board of ABP.

He has never spoken publicly about the allegations against him, which surfaced first in reporting by the Ditch, an online news outlet. As well as his work for ABP and declarations to it, the controversy has led to scrutiny of his personal property investments and his debts.

This week O’Brien has sent a senior barrister’s report on Hyde’s conduct to gardaí and the Director of Public Prosecutions, Catherine Pierse. The Minister’s move, on foot of advice from Attorney General Paul Gallagher, has raised the prospect of a criminal prosecution being taken against the man who was the second-highest official in ABP before he stood back in May as controversy swirled around him.

The findings made by senior counsel Remy Farrell in his 120-page report for the Minister remain currently unpublished. O’Brien insists he wants to publish the document but must hear first from the DPP, the concern being to avoid prejudicing any prosecution.

ABP has been carrying out an internal review of Hyde’s work and other matters, including “further allegations of wrongdoing”. The precise nature of those allegations has not been made public. The review by ABP managers has been under way for months and ABP on Friday said it was now “expected to be completed by the end of August”.

The Minister has acknowledged the affair has damaged ABP — and some Government and Opposition TDs say the apparent breakdown in the body’s internal controls has serious implications for Walsh as chairman.

“There’s an awful lot that has gone on under the current chair’s watch and there are serious questions to answer I would imagine,” said Fianna Fáil TD Pádraig O’Sullivan, a party colleague of the Minister for Housing who has long experience of planning matters from his time on Cork County Council.

“Stepping aside while various investigations, reviews — both internal, external — into the board’s operations continue I think might be in the public interest and most importantly, as I said, in saving some credibility or confidence in the board itself, because at the moment it is undoubtedly damaged,” O’Sullivan added, saying he was speaking in a personal capacity.

“Given the serious nature of their work, given how central it is to the planning process, I think that fundamentally the only way to restore public confidence is to see a big shake-up there.”

Walsh was asked through ABP whether he had anything to say about such assertions. No comments were forthcoming from him.

Questions

Similarly, Social Democrats housing spokesman Cian O’Callaghan said there were serious issues for Walsh.

“There’s a lot of questions for the chair of the board in terms of what measures were in place to ensure that these sort of allegations [against Hyde] could never have arisen,” he said.

“What controls were in place? What role did the chair of the board have in terms of those controls and procedures? Did they fail? Were they operating at all? We haven’t had any full statement from the chair of the board on any of these things.”

Responding to questions about these assertions, ABP said: “The board’s internal review of the issues raised is focused on assessing the robustness and implementation of the systems, controls and procedures in place and on identifying actions to strengthen implementation of such controls, where needed.”

Appearing before the Dáil Public Accounts Committee in July, Walsh declined to apologise for the controversy engulfing the body on the basis that the issues were still under review.

Walsh joined ABP as chairman in late 2018 from the Department of Housing, where he was assistant secretary, and it was he who recommended Hyde’s appointment as deputy chairman to the then minister for housing, Eoghan Murphy. Hyde took up that post in January 2019, and was chairman of the ABP division that handled special fast-track planning applications for large housing developments, a contentious area which has led to many High Court challenges against ABP decisions.

Facing sharp questions this spring over alleged conflicts of interest in big planning decisions, Hyde insisted for weeks that all was in order in his legal submissions to the planning appeals body.

Turning point

But a turning point came on Tuesday May 3rd when he told ABP’s board secretary that he had signed off in a planning appeal his sister-in-law took in 2021 over works at the Dublin 4 house she co-owns with his brother Stefan Hyde.

Hyde insisted no conflict was declared because he simply did not know the appeal in question was taken by a close family member, or that it concerned his brother’s Sandymount property.

But critics were quick to question that assertion, given the sensitivity of his senior role in ABP, a quasi-judicial body which has extensive powers to make or break building projects.

Hyde argued it was not ABP’s practice to identify applicants or the exact address when appeals of that nature were presented for sign-off. But the disclosure prompted questions in political and planning circles when The Irish Times and other media reported it around teatime on Friday, May 6th.

The Irish Times had asked ABP about the case on Wednesday, May 4th, questioning whether Hyde had recused himself from consideration of the appeal his sister-in-law Caroline Barron had taken under her maiden name. He didn’t, and ABP’s official record of the decision made it clear that no conflict was declared.

The first O’Brien heard about the Sandymount case was at a meeting with officials in his department that Friday evening, three days after Hyde’s statement behind the scenes to the ABP secretary. Later that evening Walsh told the Minister that Hyde was still rostered to consider planning cases.

That met a decidedly cold response from O’Brien, who had already taken the serious step of asking senior counsel Remy Farrell to investigate claims made against the deputy chairman.

The Sandymount case meant Hyde’s credibility was increasingly in question — and there were issues of public confidence and trust for the planning authority itself, which must be seen to be transparent and even-handed in its consideration of all cases.

Still, it seemed Hyde planned to remain in situ and that ABP would, for the time being at least, allow him to do so.

Intense discussions within the Department of Housing followed, culminating in urgent correspondence to Walsh of ABP not long before 11pm that Friday night.

That correspondence reiterated in writing to Walsh the Minister had expressed serious concern about the matters Hyde raised in his statement to ABP’s secretary three days previously.

Moreover, it was put on record that O’Brien sought information on the distribution of ABP business among its board members and whether Hyde particularly remained on the roster. Because of the deputy chairman’s statement, Walsh’s Confirmation that he was still in line to consider cases was a matter of specific concern to the Minister.

As a result, O’Brien sought and received from Walsh Confirmation that he would immediately withdraw Hyde’s access to electronic data and paper files, an extraordinary political intervention in the affairs of the planning body. Those measures had taken force shortly after 9pm that evening, cutting all Hyde’s phone and email access about 90 minutes before the department’s correspondence was issued.

The aim, said the department, was to maintain public trust and confidence in ABP’s board. The effect was that Hyde could not consider any planning cases as he now had no access to ABP communications and data.

There was more. The department acknowledged that Walsh shared the Minister’s view of the prime importance of maintaining public trust and confidence.

Saying it was imperative to take all necessary and appropriate steps, the correspondence went on to note Walsh’s powers under planning law to interview an ABP board member and report to the Minister if the chair thinks the member’s conduct has brought the board into disrepute or has been prejudicial to its effective performance. The procedure is known as a section 110 process, in reference to the part of the Planning and Development Act that sets out how it should be conducted.

The correspondence went on to say the Minister wanted a report from Walsh by noon the following Monday outlining his opinion on such matters, preferably after interviewing Hyde.

None of this was mentioned when ABP said late that Monday evening that Hyde was temporarily standing aside from his role.

In a statement at that time noting Farrell’s appointment and the deputy chairman’s denial of the allegations against him, ABP said: “In the context of these ongoing processes, Mr Paul Hyde has agreed with the chairperson to absent himself from his duties as deputy chairperson for the time being, on a strictly without prejudice basis.”

Another two months passed before Hyde formally resigned his post.

Legal advice

Asked about Walsh’s exchanges with the Minister that Friday in May and in the following days, ABP said the chairman had been liaising with his legal advisers prior to the Minister’s correspondence that night “regarding aspects of the allegations” against Hyde.

ABP said: “Prior to initiating the [section] 110 process, the chairperson sought legal advice (including advice from senior counsel) to ensure that the ... process was undertaken in accordance with fair procedures. A failure to adhere to fair procedures could prejudice any subsequent action.”

It added: “Consequently, the chairperson’s letter to the Minister on 9th May confirmed that relevant factual material was being gathered and legal advice had been sought in connection with Mr Hyde’s statutory declarations and the alleged conflicts of interest, to enable the chairperson to reach an informed conclusion on whether to form an opinion under ... the Act.”

ABP said Walsh’s letter confirmed that IT access had been withdrawn from Hyde and that he had agreed to absent himself from his duties for the time being. “Mr Hyde had no further involvement in the consideration of case files. Mr Hyde tendered his resignation to the Minister before the [section] 110 process was completed.”

Attempting to boost public confidence in the planning authority, the Minister has signalled an overhaul of its operations. One of the proposed actions is to compel ABP to submit monthly reports on its corporate governance to the Minister, a measure that speaks volumes about the current level of confidence in the institution within the Government.

Senator Victor Boyhan, an Independent member of the Oireachtas housing committee, said the affair raises questions as to whether ABP’s board failed in its corporate governance and its duty of care to ensure public confidence in its planning functions.

“I want to know if the Minister has full confidence in An Bord Pleanála and its chairman,” Boyhan said.

The Minister’s spokeswoman said “yes” when asked whether he had confidence in the chairman. Still, O’Brien told reporters this week there was “no question that damage has been done” to ABP.

Asked whether Walsh believes he has the Minister’s confidence, ABP said: “The chairperson and ABP have been co-operating and continue to do so in relation to assessing and addressing matters raised in respect of Mr Hyde and other issues.”

ABP added: “We are committed to taking whatever actions are needed to ensure that its systems, procedures and controls are fully adhered to and fit for purpose and to restore full confidence in the board’s role and its decision-making functions.”

Although the Minister has cast his proposals to overhaul the board as “confidence-building measures”, some in Government circles say yet more action might be required.

“The Minister’s interventions at the moment can be seen as a stopgap,” said O’Sullivan of Fianna Fáil, citing plans for a review of planning legislation in the autumn.