BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

Whether the Board has fulfilled the requirements of section 18 of the FOI Act in relation to the applicant's request for a statement of reasons regarding the non-inclusion of a condition recommended by the Board's Inspector in a planning decision made by the Board

Conducted in accordance with section 34(2) of the FOI Act, by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

This case arises on foot of Case 140276 (Mr O and An Bórd Pleanála) where this Office annulled the decision of the Board to refuse the applicant's request for a statement of reasons and directed it to issue the statement sought. In his original FOI request the applicant sought a statement of reasons for the Board's decision not to accept a recommendation by the Board's Inspector that a separating wall be included between the proposed development and the gable wall of the applicant's property.

Following the decision of this Office, the Board issued a statement of reasons on 10 March 2015. The applicant was not satisfied with the Board's response and sought an internal review of that decision on 31 March 2015. While the Board issued a more detailed response in its letter of 22 April 2015, it decided that the original decision should be upheld. The applicant applied to this Office for a review of the Board's decision on 27 August 2015.

During the course of this review, and following correspondence with this Office on the matter, the Board issued a revised statement of reasons to the applicant on 16 October 2015. However, the applicant indicated that he was not satisfied with the contents of the revised statement.

Accordingly, I have decided to conclude this review by issuing a formal, binding decision on the matter. In conducting this review, I have had regard to the submission and decisions of the Board, and to the submission of the applicant, and to the correspondence between the applicant and the Board. I have also had regard to certain records relating to the planning application, copies of which have been provided to this Office by the Board for the purposes of this review.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

This review is concerned solely with the question of whether the statement of reasons issued by the Board in response to the applicant's request under section 18 of the FOI Act is adequate for the purposes of the Act.

Analysis and Findings

In my decision in Case 140276 I outlined what this Office considers should be the principal features of a statement of reasons having regard to section 18. I explained that a statement of reasons should be intelligible and adequate having regard to the particular circumstances of the case. It should be sufficiently clear to enable the requester to understand without undue difficulty why the public body acted as it did. It should identify the criteria relevant to the act and explain how each of the criteria affected the act. However, it does not necessarily have to contain a detailed clarification of all issues identified by an applicant as relevant to a particular act or decision.

I explained in the decision that in the particular circumstances of the case, for the purposes of compliance with section 18, an adequate statement would allow the applicant to understand why the Board decided not to include the relevant condition recommended by the Inspector in its decision on the planning appeal and that the statement should contain both the reasons for the Board's decision not to include the relevant condition and any findings on any material issues of fact made for the purposes of that decision.

This case has its background in a decision taken by Dublin City Council to grant permission for development of a property adjoining that of the applicant. The applicant had made a submission to the Council raising concerns in relation to the gable wall. The report of the planning official noted that the proposed development, comprising the demolition of an existing extension and the construction of a new one, would mean that the new extension being built up to the gable wall of the applicant's property would leave the position as it was with the existing extension. The planning official stated her view that "the issue over building up flush against the gable wall of [the applicant's property] is reasonable as this is the situation at present". The planning official did not recommend inclusion of any relevant condition relating to the gable wall and the Council granted permission for the development.

The applicant appealed the decision to the Board. As part of its consideration of the appeal, the Board received a reports from one of its Inspectors. In that report, the Inspector recommended the inclusion of a new partition wall between the proposed development and the gable wall of the applicant's property. The Board's grant of permission did not include the recommendation concerning the partition wall, the effect of which was that the development could be built flush against the gable wall of the applicant's property. In essence, the applicant wants to know why the Board did not accept the Inspector's recommendation.

In its letter of 16 October 2015, the Board stated categorically that with respect to the condition that had been recommended by its Inspector, the Board was satisfied that the proposed development, without that condition, would not seriously injure the residential amenities of the property in the vicinity. It further stated that the Board concurred with the assessment of the planning authority that no specific condition was required in relation to the party wall. The Board also stated that there were no other reasons for its decision. The Board's letter of 16 October 2015 also sets out the material issues of fact it considered in relation to its decision

On reviewing the revised statement of reasons issued by the Board, the applicant argued that the statement issued is not satisfactory. In a detailed further submission, he argued, among other things, that the response of the Board to his FOI request should be "given in the form of a statement rather than embedded in a wider discourse." On the other hand, I note that he identified as relevant the Board's statement that it had concurred with the assessment of the planning authority that no specific condition was required in relation to the party wall.

I am satisfied that the Board's reasons are readily discernible from the revised statement issued to the applicant. The reality of the situation was that the Board was presented with two different opinions, that of the Council's planning official and that of its Inspector. The report of the Council's planning official clearly explains why conditions relating to the gable wall were not required, namely because the existing extension was built flush to the gable wall. Having considered the matter, the Board concurred with the assessment of the planning authority. This is why why the Board did not accept the Inspector's recommendation.

Therefore, notwithstanding the concerns expressed by the applicant in his recent submission, and having regard to the foregoing, I am satisfied that the Board's statement sets out clearly why it acted as it did, and accordingly I am satisfied it comprises a statement of reason sufficient to meet its obligations under section 18 of the FOI Act. I find that the Board has issued an adequate statement of reasons for the purposes of section 18.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby affirm the Board's decision in this case.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator