Application for statement of reasons for a decision taken prior to the commencement of the FOI Act - did the decision have continuing effect - section 18

Case Summary

Facts

The requester sought a statement of reasons from An Bord Pleanála, under section 18, in relation to various aspects of its decision to grant planning permission for a particular development. The applicant contended that An Bord Pleanála's planning decision, taken in 1994, had continuing effect. He argued that the Commissioner had said, in Case 98095 (Mr AAV and the Department of Social, Community and Family Affairs), although section 18 did not apply to acts of public bodies which predated the commencement of the FOI Act, the position might be difference if the act in question had continuing effect after the Act's commencement.

Decision

The Commissioner's authorised officer took the view that the fact that an act continues to have consequences does not mean it has "continuing effect". He found that the decision to grant planning permission did not continue in effect, for the reason that the decision was irreversible on completion of the development and he found that An Bord Pleanála's 1994 decision was not one which fell within the scope of section 18 of the FOI Act.

Date of Decision: 16.05.2000

Our Reference: 99510

16.05.2000

Mr X

Dear Mr X

I refer to your application for a review of the decision of An Bord Pleanála (the Board) to refuse to supply you with a written statement outlining the specific part or parts of the plans, particulars and specifications which, if complied with "would not injure the amenities of the area [and] would not give rise to a traffic hazard" in connection with its order of 25 November 1994, Reference no. PL.29S.093806.

Background

The background to the review is the Board's decision of 25 November 1994 on an appeal relating to the development of the former Johnston, Mooney and O'Brien Bakery site ( Reference no. PL.29S.093806). In your letter dated 5 May 1999, which contained your request for information under the FOI Act, you sought: "1. Copies of all and any plans, particulars and specifications submitted to your office in accordance with which, it is stated, "the proposed Development shall be carried out". 2. A written statement outlining the specific part or parts of the plans, particulars and specifications which, if complied with "would not injure the amenities of the area" [and] "would not give rise to a traffic hazard".

The Board's decision dated 4 June 1999 referred only to your request for access to file PL.29S.093806. Access to the file was refused on the basis that the records contained on it were all created prior to 21 April 1998 and section 6(4),(5) and (6) of the FOI Act did not apply.

You requested an internal review of this decision on 7 July 1999 and you also asked at that stage that the Board "advise on what grounds the conclusion was reached that no traffic hazard would arise from the Development which was permitted? Specifically we ask for confirmation that the submissions made by the Developers gave assurances which would obviate such hazards". You followed this letter with another dated 15 July in which you requested access to the following documents:

1. Plan No. 001 which shows a shaded area, with the statement "lands to which the Developer has certain rights, title and interest" and
2. Plan No or drawing No PP3 - reference F may No.5, which refers to the area depicted as, "Public open space, privately managed".

The Board issued its internal review decision on 22 July 1999. The decision was to grant access to file PL.29S.093806, even though all the records were created prior to the commencement of the Act. You were also advised that the reason for the Board's conclusion in the matter of a traffic hazard had been given in the First Schedule to its order dated 25 November 1994.

On 15 October last you requested that the Information Commissioner review the Board's decision The particular aspect of the request to which you directed attention was the Board's refusal "to answer a question as to the basis or documentation which influenced them into deciding that, the development of the old bakery site in Ballsbridge would not result in a traffic hazard". You asked in later correspondence that the case be expedited due to the fact that the development has led to very serious and dangerous traffic congestion which has resulted in the emergency services not being able to access the area. You also asked, in your recent submission of 15 March 2000 that you be permitted to make an oral submission on the matter. However, as this Office is solely concerned with the implementation of the FOI Act, and the issues raised by your case in relation to the Act are clearly presented, I have decided your case on the evidence before me. I regret the delay in responding to your request, which was due to the large number of cases on hands in this Office.

Scope of Review

Ms. Ivory, Investigator, wrote to you on 16 February, 2000 and advised you that it appeared that that the only outstanding issue for review was your request for a written statement outlining the specific part or parts of the plans particulars and specifications, which if complied with would not injure the amenities of the area and would not give rise to a traffic hazard. This is the aspect of your request which I have dealt with in this review. I have treated it as a request under section 18 of the FOI Act.

Findings

Section 18 provides as follows: (1) The head of a public body shall, on application to him or her in that behalf, in writing or in such other form as may be determined, by a person who is affected by an act of the body and has a material interest in a matter affected by the act or to which it relates, not later than 4 weeks after the receipt of the application, cause a statement, in writing or in such other form as may be determined, to be given to the person- (a) of the reasons for the act, and (b) of any findings on any material issues of fact made for the purposes of the act.....

(5) For the purposes of this section a person has a material interest in a matter affected by an act of a public body or to which such an act relates if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member.

(6) In this section- ''act", in relation to a public body, includes a decision (other than a decision under this Act) of the body; ''benefit", in relation to a person, includes- (a) any advantage to the person, (b) in respect of an act of a public body done at the request of the person, any consequence or effect thereof relating to the person, and (c) the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person.

In case 98095, a copy of which was sent to you by Ms. Ivory with her letter of 16 February 2000 the Commissioner decided that section 18 does not have retrospective application. The reasoning for his decision is set out in that case. While he found that section 18 did not require public bodies to furnish a statement of reasons for acts which occurred prior to the commencement of the Act, he indicated that the position might be different were the acts in question to have continuing effect after 21 April 1998.

You have contended (in your letter of 14 September 1999 to the Board) that "Although the decisions taken by your Board, were prior to 21st April 1998, the consequences of that decision, both by way of erosion of local amenities in the area concerned, and serious traffic hazards, are ongoing and increasing". You have outlined the ongoing difficulties caused to the residents of Ballsbridge Terrace by the traffic problems resulting from the development in a number of letters to this Office.

I have considered, therefore, whether in this case, section 18 can be invoked to require the Board to give reasons for the decision in question which took place prior to the commencement of the FOI Act. Clearly, the development has resulted in changes of various kinds for the area. However, I do not consider the fact that a decision continues to have consequences to mean that it has "continuing effect" in the sense in which that term was employed in case 98095. In that case, the possibility was raised that there could be a situation where a decision, made prior to the commencement of the Act, could continue in effect and as such, might fall within the scope of section 18. The types of decisions which continue in effect mainly involve the withdrawal or refusal of a material benefit and are decisions which are capable of alteration or reversal at any point during the period in which the decision continues in effect. I do not consider the decision of the Board to grant planning permission to the developers in this case to be a decision which continues in effect as that decision was, in effect, irreversible on completion of the development. While there undoubtedly have been many consequences resulting from the decision, the decision itself does not continue in effect. Therefore, I do not find that the decision of the Board made on 25 November 1994 falls within the scope of section 18 of the Act.

Decision

I have been authorised by the Information Commissioner to carry out on his behalf the review of the Board's decision on your Freedom of Information (FOI) request. Having completed my review under section 34(2) of the FOI Act, I have decided to affirm the decision of the Board. A detailed explanation of my decision is set out below.

A party to a review, or any other person affected by a decision of the 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 4 weeks from the date of this letter.

Yours sincerely

Patrick Whelan
Director