Case 110150

The Senior Investigator found that the Council was justified in its refusal of a statement of reasons on the grounds that the applicant had not demonstrated a material interest under section 18 of the FOI Act.

Case Summary

Whether the Council is justified in its decision to refuse a request for a statement of reasons made under section 18 of the FOI Act.

Date of Decision: 25.06.2012

Review Application to the Information Commissioner under the Freedom of Information Acts 1997 and 2003 (the FOI Act)

Background:

On 26 May 2011, the applicant made a request to the Council under Section 18 of the FOI Act for a statement of reasons in respect of the Council's decision to settle legal proceeding in respect of alleged unauthorised development at X,  Co. Kerry and in respect of the Council's decision to grant planning permission in respect of a development at the same location (Council Planning Register Ref. No. Y refers). On 23 June 2011, the Council refused the request on the basis that the applicant had not demonstrated that he was materially affected by the act/s of the Council. The Council, on internal review, affirmed its original decision on 19 July 2011. On 9 August 2011, the applicant applied to this Office for a review of the Council's decision.

On 24 May 2012, Mr. Maurice Kiely, Investigator, informed the applicant of his preliminary view that the Council's decision to refuse him a statement of reasons for the act/s at issue was justified as he did not have a material interest therein under section 18(5) of the FOI and he invited the applicant to make further comments if he disagreed with that preliminary view. The applicant has made a number of comments and indicated that he did not agree with Mr Kiely's preliminary view. Accordingly I have decided to conclude this review by issuing a formal decision.  In conducting this review I have had regard to the provisions of the FOI Acts, to the relevant submissions of the Council and to those of the applicant.

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.

Scope of the Review

The scope of this review is confined to whether or not the Council is justified in deciding to refuse the request for a statement of reasons.

Submissions

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Findings

Section 18

Section 18 of the FOI Act provides that a person is entitled to a statement of reasons for an act of a public body where that person is affected by the act and has a material interest in a matter affected by the act or to which it relates. Section 18(5) provides that a person has a material interest in a matter affected by an act of public body or to which it 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."

Section 18(6) provides definitions for that 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 this case the Council considered that the applicant  had no right to a statement of reasons under section 18 of the FOI Act, because the acts referred to in his application did not confer on him or withhold from him a benefit which was not conferred on or withheld from persons in general.

In his correspondence with the Council and with this Office, the applicant presented a number of arguments in support of his view that he is entitled to a statement of reasons in this case.  His primary arguments concern the facts that he has a landholding which is adjacent to the land where the development has taken place and that he has shown an interest in the matter as a result of his ongoing and extensive engagement in the planning process.  In his letter of 24 May, 2012, Mr Kiely informed the applicant of his view that the applicant does not have a material interest in a matter affected by the acts of the Council or to which they relate.  He informed the applicant of his view that the Council's decision in respect of its court proceedings relates to alleged breaches of the planning regulations and therefore affects everyone, as does its decision in respect of the grant of a planning permission.  He suggested that the proximity of a person to a development does not, of itself, mean that the person is any different.  He also informed the applicant of his view that it is open to any person to show the same level of interest, or not as the case may be, in the planning issues in question.  Finally he explained that the history of unauthorised development was not a relevant consideration in determining whether a statement of reasons was required and he also noted that the Council's decisions had not affected a right of way which the applicant had referred to in earlier correspondence.

In response, the applicant argues that for the purposes of  section 18(5) he belongs to all and any of three classes of persons, as follows:

1. Those persons who are adjacent property owners to the lands in question
2. Those persons who enjoy a right of way through the lands in question
3. Those persons who share with the lands in question a common access onto the public road.

I should say at this point that the applicant appears to have misunderstood in part Mr Kiely's assertion that the decisions of the Council in this case affect everyone, hence the argument that he belongs to a specific class of persons.  Mr Kiely's point was that to be entitled to a statement of reasons under section 18, a person on whom or from whom a benefit may be conferred or withheld must not be a member of a class of similarly  affected persons which is of significant size having regard to all the circumstances. Nevertheless, I will consider each of the arguments advanced by the applicant separately.

1.  The applicant's argument in relation to point 1 is that adjacent landowners are more affected by the decisions at issue.  I agree with Mr Kiely that the proximity to the development does not, of itself, suggest that a person is directly affected by the Council's decisions.  While it may well be the case that the applicant has shown a significantly greater interest in the development having regard to the proximity of his property, I am satisfied that the onus remains on the applicant to show how the Council's decision's have conferred on or withheld from him a benefit without also conferring it on or withholding it from persons in general.  I do not accept that the applicant has shown this

I  take the view that Case Number 031014, available on our website at www.oic.ie, cited previously by Mr. Kiely, remains relevant and that persons living in the vicinity (close proximity as it transpired) as in the applicant's case therein are not dissimilar for the purposes of the Planning and Development Acts to those persons whom the applicant identifies as being adjacent property owners to the land in question.

2. I note that the applicant enjoys a right of way through the lands in question and that he accepts that the Council's decision does not affect this right of way in the material sense but he contends that certain development on the lands in question  has particularly affected his and others who enjoy the same right of way as himself, aesthetic enjoyment of that right of way. I take the view that unless the right of way in question includes a right to aesthetic enjoyment through the property in question with obligations thereupon required from the property owner the aesthetic enjoyment of the panorama is open to persons in general.

3. I understand that the applicant  has already received a statement of reasons from the Council in respect of a separate request (Council Ref: Z) under section 18 of the FOI Act regarding the possible realignment of a bend in a road to satisfy the conditions of a planning application and that the Council dealt with it on the grounds that altering the bend may impact on him exiting and entering his property in terms of sight lines and road safety. However, I take the view that a public body such as the Council  under the FOI Act are entitled to decide each request for a statement of reasons under section 18 on its own merits and I am not satisfied that the applicant has demonstrated in this case that having regard to the Council act/s at issue and particularly  having regard to the circumstances of the Planning and Development Acts under which the Council are obliged to operate that he is a member of a class of persons who are not of significant size and share a common access onto the public road.

While the Commissioner has not so far formed an opinion as to what is the minimum number of persons which for the purposes of section 18(5) of the FOI Act she would consider not to form a class of persons I take the view that any such opinion cannot be decided in isolation from the "the circumstances" of the request for a statement of reasons under section 18. Accordingly I do not propose to expand further on this matter.

It is also important to to appreciate that the remit of the Commissioner does not extend to the appropriateness or otherwise of the particular actions of a public body and that for the purposes of the FOI Act the taking of an interest no matter how extensive by a person particularly by this applicant in a planning and development issue does not of itself confer that "material interest" which is required under section 18(5). Moreover the Planning and Development Acts does allow for any person to take an interest in their operation, administration and enforcement.

I am satisfied that the applicant has not demonstrated that he is entitled to a statement of reasons for the act/s of the Council at issue and that the decision of the Council to refuse the request, under section 18 of the FOI Act is appropriate.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby decide that the decision of the Council  is justified in this case.

Right of Appeal

A party to a review, or any other person affected by the decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Any such 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

25 June 2012