Planning tribunal unravels

WITH many of the findings of the epic Tribunal of Inquiry into Certain Planning Matters and Payments being overruled by legal challenges, the credibility and, indeed, value of such tribunals has to be called into question. Some, against whom findings of corruption and of having hindered the inquiry were made, have had these overturned by the courts and been awarded their legal costs, amongst them retired senior planning official in Dublin, George Redmond.

Former Fianna Fáil minister Ray Burke was found by the first judge in charge of the tribunal, Mr Justice Feargus Flood, in his 2002 report, to have received corrupt payments and he, and those he took bribes from, were told that they would have to pay their own legal costs, believed to run to €5m in Burke’s case alone. As a result of recent court rulings, the tribunal will have to redact the findings of hindering and obstruction against Burke and the businessmen concerned and, as in Redmond’s case, may also be forced to withdraw the corruption finding.

Legal precedents set by these decisions also open the door for others who had heretofore been reluctant to challenge tribunal findings about them – for fear of losing their cases and adding to substantial legal costs already accrued – to go to the courts to seek to have their costs covered and, perhaps, have findings made against them overturned. Costs awarded to them will ultimately be picked up by the taxpayer and, presumably, these will include, not only the tribunal costs, but those of all subsequent related litigation.

The biggest winners here are the legal profession who will have earned a large proportion of the €159m which the tribunal’s current head, Mr Justice Alan Mahon, estimates will be its final cost. However, this could be added to by the further awarding of costs to people currently taking legal challenges or about to.

The planning tribunal would have offset the cost to the taxpayer somewhat by prompting many of the players involved to make substantial tax settlements with Revenue in respect of undeclared cash payments received. When Mr Justice Mahon published the final report in 2012, it was expected that criminal prosecutions would be brought against those found by the tribunal to have been involved in the making and taking of corrupt payments. Some were, but now that many of the findings are being redacted, others are unlikely to be pursued.

This begs the question: Was the planning tribunal a complete waste of time?

Back in the mid-1990s there was much anecdotal talk of brown envelopes full of cash and questionable rezoning decisions by local authorities, especially on the outskirts of Dublin. What was lacking was hard evidence and, when a £10,000 reward was offered in 1995 by An Taisce chairman Michael Smith and barrister Colm Mac Eochaidh for information that could lead to convictions for planning corruption, the colourful James Gogarty (since deceased), who had worked for the JSME construction company, came forward with allegations about payments to Ray Burke, which forced the latter to resign as minister and led to the planning tribunal being set up in late 1997, continuing for 15 years and producing some damning evidence and findings.

But, will it all amount to nothing in the end, given that many of its key findings are being withdrawn? Whatever about specifics, the planning tribunal shone a light on the greed that led people to flout a planning system that was open to manipulation and exposed many of those who felt they were able to do this with impunity.

It confirmed for people a lot of what they had suspected about golden circles involving developers and politicians. The greed that was there then went on to fuel the property bubble of the Celtic Tiger era that consumed a lot of Irish society as successive governments failed to put the brakes on, policy-wise, before it burst.

The planning tribunal also contributed greatly towards a loss of respect for politicians, especially Fianna Fáil ones, who were unceremoniously booted out of government in the 2011 general election in the wake of its revelations. It was not just Fianna Fáil, as a number of councillors from other parties were also named and shamed and some subsequently prosecuted for accepting corrupt payments.

The final report of the planning tribunal, which was published in March 2012, made some useful recommendations about reforming the planning process, however it is only this month – almost three years later – that Minister for Environment, Community and Local Government Alan Kelly has published the General Scheme of the Planning and Development (No 2) Bill 2014 with a view to implementing them. Its main provision is the establishment of the Office of the Planning Regulator, which will be independent of the Department and this is a welcome move, given the many crazy zoning and rezoning decisions that were made countrywide over the years, such as allowing houses to be built on flood plains.

Hopefully, the planning tribunal’s main legacy will be that everybody learns from past mistakes that should not be repeated in the future.

editorial