An Bord Pleanála and Bias

The second Principle of Natural Justice is Nemo Iudex In Causa Sua which means that a person is not allowed to be a judge in his own cause. This ancient principle is the basis for the concept of bias in our law.

Bias can be defined as a predisposition or a preconceived opinion that prevents a person from impartially evaluating facts that have been presented for determination. Phew, what a mouthful. In other words, bias in its ordinary sense is a form of prejudice that prevents a decision maker from being impartial or neutral.

However, as I hope to explain, the legal concept of bias goes much further than the factual question of whether a person is biased or not. In the law, bias is all about perception – it is a question of whether the public think that a person is biased, and that is far more important than the question of whether he or she is actually biased.

The basis for the rule against bias is the need to maintain public confidence in the legal system.

When looking at the courts, a judge who demonstrates bias in a hearing over which he or she presides has a mental attitude toward a party that prevents the judge from making sure that both the plaintiff and the defendant enjoy a level playing field during their trial. In other words, bias deprives a party of the constitutional right to a fair trial. A judge may recuse himself or herself (i.e. remove themselves as decision maker on that case) to avoid the appearance of bias. This is even where the judge personally knows that he or she will be fair. Their own view is secondary to the importance of letting the public know that there must be no doubts over the impartiality of a judge hearing the case.

Bias can take the form of actual bias, imputed bias or apparent bias. Actual bias is very difficult to prove in practice and only occurs in the most obvious cases – where a judge refuses to let a witness or his lawyer speak, for example.

Imputed bias, once shown, will result in a decision being void without the need for any investigation into the likelihood or suspicion of bias. The most common form of imputed bias is where the judge or the decision-maker is a party to a suit – in other words they are actually involved in the dispute that appears before them; or having a pecuniary or proprietary interest in the outcome of the decision, which means they stand to lose or gain (power, influence, money or other assets) depending on which way the decision goes.

Those are the ‘easy’ situations and they rarely happen anyway. It is really situations of apparent bias that stir up the most controversy. This is where the concept of ‘justice must not only be done, it must be seen to be done’ comes to the fore. If the public are to have faith in the system, they must be able to see for themselves that the system is fair. It is for that reason that it is not so much a case of whether the judge or other decision maker is biased or not, but whether there is a danger that the public might think that they are biased. If so, the public will lose faith in the system and so will take steps to resolve their problem outside the system – for example, vigilantism. Therefore, it is the perception that is all important – if the ordinary bloke in the street is thinking – “geez, why is that guy carrying on hearing that dispute? They should get somebody else to do it – I wouldn’t trust that decision”, it is time for that decision maker to walk away from the dispute – i.e. to recuse himself or herself.

In Ireland the test is one of “reasonable apprehension”. If the average reasonable person would be suspicious of the impartiality of the decision maker, that decision maker should recuse himself or herself. The leading case in Ireland is Orange Communications v Director of Telecommunications Regulation [2000] 4 IR 159, where the Supreme Court confirmed the ‘reasonable apprehension’ test for apparent bias.

That is what goes for the judges, but what about government-appointed officials acting in an administrative capacity?

A casual onlooker might say, “So what if they are biased, they are government-appointed, what do you expect?”

This raises the question concerning the nature of the function carried out by An Bord Pleanála and the legal and ethical principles connected with that function.

An Bord Pleanála (ABP) is an independent, statutory, quasi-judicial body that decides on appeals from planning decisions made by local authorities in Ireland. As of 2007, the ABP directly decided major strategic infrastructural projects (for example, the Grid25 projects of EirGrid) under the provisions of the Planning and Development (Strategic Infrastructure) Act 2006. The Board also hears applications from local authorities for projects which would have a significant environmental impact. The Board was established by the Local Government (Planning and Development) Act 1976, whose provisions were for the most part carried over into the Planning and Development Act, 2000.

Let’s just clear one thing up very quickly. The simple fact that you are appointed by the government does not automatically mean you are expected to favour the government in your decisions. A judge is also appointed by the government but once appointed is expected to carry out his or her duties with absolute fairness and impartiality. If there is any suggestion of bias, that judge must recuse immediately and another judge will hear the case. In other words, the duties of your office should erase any question of you being biased towards the government simply because they gave you a job.

Can the decision makers of the APB be compared to judges? The short answer is yes, they can. They are carrying out an administrative duty that is quasi-judicial in nature. In other words, they are doing a lot of things a judge will do – hear witnesses, consider evidence and legal argument, and make a decision that might have huge legal consequences. Therefore it is only fair that the public can expect the same fairness and appearance of neutrality in order to keep public faith in the planning permission system.

The Orange Communications judgment of the Supreme Court was followed in the case of Usk and District Residents Association Ltd v An Bord Pleanala [2010] IR 184 where MacMenamin J. said:

“More fundamentally, were there any doubt on the question, it is quite clear that as a matter of Irish law a finding of objective bias can be made even against a judge in the performance of his or her legal and constitutional duty qua judge: ( Dublin Wellwoman Centre Ltd. v. Ireland [1995] 1 I.L.R.M. 408). The taint there was not personal prejudgment, but the perception of it by dint of the judge’s membership of a council which had expressed views on a sensitive social and moral issue. The circumstances there were far more remote than in the instant case, yet the Supreme Court held the judge should have recused herself so that there would be no appearance of bias. As explained earlier it is not dominant doctrine and can never supplant a reasonable fear of bias properly based on evidence and reasonable inference.
[89] For the reasons outlined, the evidence establishes objective bias on the part of four out of the six decision makers by way of prejudgment of the same issue. It has not been justified by way of legal defence. I must therefore find that the residents are entitled to have the decision quashed on this ground.”

The judge was damning in his criticism of the way that the APB had carried out their functions and he made a clear finding of ‘objective bias’ (i.e. factual bias rather than just perceived bias). He also made it clear that even if there was only apparent bias, this was enough to necessitate the APB members to recuse themselves.

Against this background, the recent statement by Wind Aware Ireland needs to be taken very seriously:
“Wind Aware Ireland: Press release 9th July 2014″

Has our planning process been corrupted? Key members of An Bord Pleanála have strong links to the wind industry and have granted controversial permissions for wind energy and Grid25 projects.
Concerns regarding conflicts of interest on the board of An Bord Pleanála (ABP) have been mounting, especially in relation to the connection between several board members and the private wind industry. Several controversial decisions have been made by the board in recent months regarding wind farms and the associated grid upgrade. Local people are disillusioned and disheartened by the apparent fait accompli of these projects, despite massive resistance on the ground by those who have to live with the consequences.
Coillte’s application for a wind farm in Cullenagh, Co. Laois was turned down by Laois County Council. ABP’s inspector also recommended the application be refused on the grounds of visual impact in this scenic, elevated area, the effect of noise and shadow flicker on the local community and concerns about the haul route for construction. Of note is the proximity of the Timahoe Round Tower which is only metres from the centre of the small road which will carry over size, heavy trucks. In addition 15 families on the Stoney Road in Timahoe village will have 130m turbines 600m in front of and behind their houses.
The Yellow River wind farm in Rhode Co Offaly was a development considered to be strategic infrastructure (SID). Despite a petition by over one thousand residents, no oral hearing was granted and ABP granted permission.
The North-South interconnector is part of Eirgrid’s planned cabling for pylons to connect Ireland’s electricity gird with that of Northern Ireland. The plan has been challenged by communities who were particularly incensed by the energy regulator’s proposal that Eirgird be paid a bonus for pushing the pylon project through speedily.
These three projects have been granted permission by the same board members, these being; Mary Kelly, Conall Boland, Fionna O’Regan and Gabriel Dennison. In addition, Nicholas Mulcahy was part of the group for the North-South Interconnector and Cullenagh decisions.
Conall Boland, was originally appointed by Dick Roche and reappointed by Phil Hogan. He is deputy chairperson of the board. He was formerly the technical director of RPS Consultants, the company who prepared and lodged the application for Coillte in Cullenagh.
Fionna O’ Regan, appointed by Eamon O Cuiv, previously worked for Fehily Timoney Engineers and has carried out work on over 50 wind farms in Ireland, including preparing planning applications, licensing and grid connections. Prior to this she worked for ‘a renewable energy development company’. She was quoted in Wind Power Monthly in an article entitled ‘Speed is of the Essence’as ‘identifying the appeals board as an obvious bottleneck’.
Gabriel Dennison, appointed by Phil Hogan, was involved in renewable energy projects in Ireland and abroad as an advisor and investor.
Mary Kelly was appointed chairperson of ABP by Phil Hogan in 2011. In her previous incarnation she was a member of the EPA, which controversially approved the Poolbeg incinerator in 2007, before the EPA hearings on the matter in 2008.
Nicholas Mulcahy was appointed by Phil Hogan and has no known connections to the wind industry.

The members of An Bord Pleanála are political appointees and the Planning Act 2010 Amendment 41 allows a quorum of three members to decide in case of SID and 2 in other cases. This means that, in a case like Cullenagh, despite refusal by the local authority and their own inspectors two political appointees of ABP could grant permission.”

If Wind Aware Ireland was prepared to make these serious allegations in the form of a press statement, one must assume that they carefully researched their information before issuing this press release. In other words, a reasonable person would be justified in believing the contents of this statement. This is not some lunatic spraying mad slogans on the train station wall, or an anonymous posting on Facebook; this is a national organisation identifying themselves in the national media.

On the basis of the reasonable apprehension test, and the Usk judgment (which followed the Supreme Court’s Orange Communications judgment), these four members of ABP should recuse themselves immediately whenever they are asked to preside over a planning application or a planning appeal concerning wind farms or wind turbines. It is not a question of whether they are biased or not, and I have no doubt that they are all fine upstanding citizens who do their best to be impartial, it is just that the public will never believe they are impartial in their decisions. This will completely undermine any public confidence in the planning system (assuming any remains) which in turn undermines our entire administrative system, and in so doing removes one of the most important constitutional rights of the Irish citizen – the protection provided by our laws.

At the time of the Usk judgment, Paudie Coffey TD, who is now in government and was recently appointed Minister of State at the Department of the Environment with Special Responsibility for Housing, Planning and Coordination of the Construction 2020 Strategy (in other words, he will deal directly with the ABP), said the following:

“I have no issue concerning the planning matters and An Bord Pleanala needs to be independent of all politics and any interventions. However, I have a problem with the whole procedure, including the transparency and accountability with which An Bord Pleanala does its work. Perhaps the Minister of State can clarify whether section 21 allows An Bord Pleanala to recover costs owing to some crazy decisions it has made to defend decisions without proper accountability and transparency. I certain hope it does not. It has been found by the courts to have objective bias, which is a serious attack on the fundamental integrity of the planning process. An Bord Pleanala failed to oversee and ensure proper procedures within the decision-making process.
I asked this question at a sitting of an Oireachtas joint committee and I was told that the judge had made a wrong assumption. That was a serious statement of arrogance by An Bord Pleanala. The following day the Courts Service took issue with that assertion by the head of An Bord Pleanala. I have concerns about the transparency, accountability and integrity of An Bord Pleanal’s planning process and how it arrives at its decisions. Perhaps the Minister of State can clarify whether any element of this section refers to the recovery of costs where An Bord Pleanala has made decisions that were wrong and should never have been taken. I would appreciate some clarity on that matter.”


It would be interesting to know if Minister Coffey is currently pursuing that line of enquiry with the same level of zeal that he showed when in opposition?

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from full-time practice in 2002 to take up a lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). His current interest is the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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10 Responses to An Bord Pleanála and Bias

  1. Pat Swords says:

    People need to be a bit careful about making claims about Dr Mary Kelly and Poolbeg. Emissions control licensing is a highly defined area, in particular for incineration systems, where previously Directive 2000/76/EC on waste incineration applied, which got incorporated into the new Directive on Industrial Emissions, 2010/75/EC. The important point here is that if an operator meets the defined requirements of Best Available Techniques, then the permitting authority, in Ireland the EPA, has no grounds for refusal. So it’s a bit different than planning, which is far less defined and subjective.

    However, as Director of the EPA, Mary Kelly was appointed for a seven year term; it is not a permanent position. One can figure out from the below who exactly you need to be ‘in with’ to get appointed:

    Summer 2009 was important for a number of reasons, Gormley and Ryan were Ministers, the wind programme was initiated with full force and the Irish Academy of Engineering published a report criticising it, for which they got some ‘traction’ in the national media for calling a spade a spade.:

    Dr Mary Kelly was coming to the end period of her term and needed a new job, so she of course obliged her ‘political masters’ with the the following in the National press to counter what the Academy were highlighting:

    Statements such as “green jobs, green technologies and renewable energy innovations are recognised as the foundations of our future prosperity” are an opinion, a political opinion, for which the most senior environmental scientist in State employment is not allowed to make unless there is a factual documented basis behind it. To be clear, the Aarhus Convention requires that environmental information be transparent and effectively accessible, the EU legislation defining it as ‘accurate, up to date and comparable’. I requested back in 2009 the supporting information related to the above statements of Dr Kelly from the EPA, referring to the Aarhus mechanisms. There was a point blank refusal to provide it, it didn’t exist.

    Was this corruption? You can read the legislation below about a ‘consideration or advantage’ and “omission in relation to his or her office”

    Basically, she told ‘porkies’ to suit her political masters and further her career, at the expense of the Irish public’s right to be provided with environmental information which was ‘accurate, up to date and comparable’. As a result she in turn got rewarded with the ‘An Bord Pleanala’ job, she after all having demonstrated completely that she is biased to suit the political objectives at play and was not constrained by the legal framework which applied.

    Finally on that legal framework, the introduction to the Aarhus Convention stresses the need for transparency in the below. You can bet your bottom dollar that this is the last thing the Board of An Bord Pleanala and their political masters actually want.

    Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights,

    Recognizing that, in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns,

    Aiming thereby to further the accountability of and transparency in decision-making and to strengthen public support for decisions on the environment,

    Recognizing the desirability of transparency in all branches of government and inviting legislative bodies to implement the principles of this Convention in their proceedings,

    • Neil van Dokkum says:

      Thanks Pat. Your views are always enlightening. As I was careful to point out, this blog is not alleging that these people are biased, but rather that they should realise that they will be perceived to be biased, and on that basis alone they should recuse themselves.

  2. Kathleen Connelly says:

    Just reading your post, add another wind farm to the list, Coore /Shanaway in West Clare. Comprehensively turned down by Clare County Council, An Bord Pleanana inspector recommended refusal, then approved by ABP a few weeks ago. Board member Fiona O’Regan.

    • Neil van Dokkum says:

      Thanks Kathleen. I hope to God that there aren’t further additions to that list. Who was/were the other Board member/s?

  3. The Irish Way says:

    A very sincere thank you for your time and skill in putting all this information together. To say that it is appreciated is a huge understatement, it is more than appreciated. It’s like the voice of reason in all this madness.

    It’s hard to know which side of the fence Paudie Coffey is on, not too long ago he asked Jan O’Sullivan to be lenient with planning regulations for a hydro turbine in a SAC in Waterford/Tipp border. In one particular section of the Oireachtas report of the 12th June 2013, Coffey refers to the “convoluted nature of the planning process makes it difficult for proposers as they have to provide a large amount of information”. and just a few weeks later, on the 10th July 2013, he announced “We have a hydroelectricity scheme on the Glasha river in Waterford, which will generate hydroelectricity for Merck Sharp & Dohme, again to assist in the reduction of carbon emissions. However, the problem is connectivity to the grid. We can use all the flowery language and talk about the ideology with regard to setting targets but unless we align our policies and make the reforms and changes that are needed, we will not reach those targets. “.

    Merck were contacted and after a conversation with their Corporate Communications Manager, Helen Colier, who emphatically stated that Merck have nothing to do with this project and there was a huge concern that Merck were being used in this way, and considering their local environmental track record it’s not surprising that they were very quick to issue this statement “The MSD site in Ballydine has had no input, interest or involvement in this planning application”.

    The Planning was granted for the Hydro Electric Turbine in August of last year. (planning application no 11314 in Waterford Co.Co. Planning) One man was granted permission, and allocated €154,000. Leader funding, to help with this project. One man – not some corporate developer, but one man has been granted permission to destroy a Special Area of Conservation, a salmonid river, pine martins, red squirrels, barn owls and bat habitats, moss’s and other flora, broad leaved trees and a small woodland area of beach trees under-which is the local ‘bluebell woods’ that local people have enjoyed for generations, you name it this little wild place has it, but the developer has been granted permission for his own personal gain!
    I was cautioned, by a now former local Councillor, to be ‘very careful what I go public with’ (which I don’t mind saying did frighten me) but I took the ‘advise’ on board and was very careful what I went public with. The consequences of which put me in touch with so many other people around the country that have similar experiences with planning.

    And now with the new Local Government Reform Act 2014 and the rolling out of the Public Participation Network (PPN) people are exhausted and confused as to who has what authority and how to go about registering complaints. Not only has an Board Pleanala lost any credibility but local government authorities are no longer trusted.

    Once again Thank You for this forum where we can engage, share experiences and learn more of what is really going on behind scenes.

    • Neil van Dokkum says:

      It saddens me that such a beautiful place will be destroyed and the wildlife decimated just so that an individual can make a ton of money. There is just so much money on offer that I suppose it is inevitable that those in power will be bought off. How to stop it?

    • Owen Martin says:

      Was an EIS done for this project do you know ?

  4. Owen says:

    An Bord Pleanala are simply not fit for purpose. This is clear in the recent Kelly Judgement in Roscommon where they granted permission for windfarms in an area with 10 special conservation habitats !

    • Neil van Dokkum says:

      Very true Owen. That is a critically important judgment and I will try and do a piece on it soon, as well as your excellent ‘Garth Books’ idea!

  5. Pingback: RTS & Ors -v- An Bord Pleanála [2015] IEHC 18 – lessons learned | The Law is my Oyster

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