Case 000005 Request for copies of records relating to applications for planning permission - whether the Act applies to such records - section 46(2)

Case Summary

Facts

The requester applied to Offaly County Council for a letter of objection submitted in respect of her application for planning permission and a map submitted in respect of a separate application. The Council refused access on the ground that the records sought are available for public inspection. The requester applied to the Commissioner for a review of that decision.

Decision

The Commissioner found that the records sought were available for public inspection pursuant to Article 36 of the Local Government (Planning and Development) Regulations 1994 which provides that the records received by a planning authority in relation to a planning application shall be made available for inspection by members of the public. He found that section 46(2) of the FOI Act, which provides that the Act does not apply to a record that is available for inspection by members of the public whether upon payment or free of charge or to a copy of a record which is available for purchase or removal free of charge, applied and he affirmed the decision of the Council. The Commissioner noted, however, that the Department of the Environment, following an investigation of a complaint by the Ombudsman, issued a circular to all local authorities in 1995 requesting that copies of documents relating to planning applications other than plans, drawings, or photographs be made available for purchase. He explained that the Ombudsman takes the view that while the circular may not be legally binding, he would expect local authorities to comply with it.

Date of Decision: 20.10.2000

Our Reference: 000005

20.10.2000

Ms X

Dear Ms X

I refer to your application under the Freedom of Information Act for a review of the decision of Offaly County Council to refuse your request for copies of a letter submitted in the name of Ms Y objecting to planning permission which you applied for at XXX, and a map submitted by Ms Z as part of an application by Mr A for planning permission also at XXX.

Background

I have been authorised by the Information Commissioner to carry out that review on his behalf. I have now completed my review of the Council's decision. In carrying out that review I have had regard to the Council's explanation for refusing your request for copies of the records in question and to those provisions of planning legislation which I consider to be relevant to your request. I note that Mr. Stephen Rafferty, Investigator, wrote to you on 28 September 2000 outlining his preliminary observations on the matter and inviting you to make any further comments which you consider may be of relevance to your request. As I have not heard from you I have decided to conclude my review by issuing a binding decision.

Scope of Review

You originally sought copies of a letter submitted in the name of Ms Y objecting to planning permission which you applied for at XXX, and a map submitted by Ms Z as part of an application by Mr A for planning permission also at XXX. The Council refused access on the grounds that the records sought are available for inspection by members of the public in accordance with planning law. Accordingly, my review is concerned solely with the question of whether you are entitled, in accordance with the provisions of the FOI Act, to copies of the records in question.

Findings

Section 46(2) of the FOI Act provides that the Act does not apply to a record that is available for inspection by members of the public whether upon payment or free of charge or to a record a copy of which is available for purchase or removal free of charge. Article 36 of the Local Government (Planning and Development) Regulations 1994 provides that the records received by a planning authority in relation to a planning application shall be made available for inspection by members of the public. As the records you seek are documents which were submitted in relation to planning applications, they are available for public inspection. I find, therefore, that the FOI Act does not apply to the records sought and that the Council is entitled to refuse your request in accordance with section 46(2).

I note, however, that Mr Rafferty indicated to you in his letter of 28 September 2000 that the Department of the Environment, following an investigation of a complaint by the Ombudsman, issued a circular to all local authorities in 1995 requesting that copies of documents relating to planning applications other than plans, drawings, or photographs be made available for purchase. He also advised you that the Ombudsman takes the view that while the circular may not be legally binding, he would expect local authorities to comply with it.

I note that Mr. Rafferty made further enquiries with the Council in relation to the records you seek and that the Council indicated that it does not make copies of documents held on planning files available until such time as a decision in respect of the application has been taken. It indicated that a copy of the map sought is now available for purchase as a decision has been made on the particular application but that a copy of the letter of objection is not yet available for purchase as no decision has as yet been made on the application to which the letter refers. Having examined the circular which the Department of the Environment issued, it appears to me that there should be no distinction made between applications decided upon and applications where a decision is pending. In the circumstances, you may wish to refer this matter to the Ombudsman for examination. Nevertheless, in carrying out this review I can only take account of the provisions of the FOI Act and the manner in which the Council have interpreted them and, as I have indicated above, I find that the Act does not apply to the records you seek.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, I hereby affirm the decision of Offaly County Council to refuse your request for copies of the records sought.

Yours sincerely

Patrick Whelan
Director General