Whether the Board was justified in its decision to refuse a request made under section 18 for a statement of reasons in relation to 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

The applicant applied to the Board on 11 July 2014 seeking a statement of reasons in relation to a decision of the Board on a planning application under section 18 of the FOI Act. The applicant requested:
(a) the reason for the Board's decision not to accept the Inspector's recommendation in relation to Condition No 3.
(b) any findings on any material issues of fact made for the purposes of arriving at this decision to amend the Inspector's recommendations in this way.

To clarify, Condition 3 was a recommendation formulated by the Board's inspector in light of particular issues relating to a development along the gable wall of the applicant's home. The condition required the inclusion of a separating wall between the proposed development and the applicant's gable wall. The omission of Condition 3 from the decision of the Board to grant planning permission has the effect of allowing the development to be built flush against the applicant's gable wall.

The Board issued its decision in response to this request on 30 July 2014, in which it refused the request on the basis that the information was deemed to be available in previous correspondence with the Board and through the Board's public access provisions. The applicant applied for an internal review of this decision on 26 August 2014. The Board issued its internal review decision on 15 September 2014. It upheld its original decision and stated that the applicant did not have a 'material interest' for the purposes of section 18, and so was not entitled to a statement of reasons under section 18. The applicant applied to this Office for a review of this decision on 8 October 2014.

During the course of this review, Mr Christopher Campbell of this Office wrote to the Board outlining his preliminary view on this case. The Board, in its submission of 17 December 2014, subsequently accepted that the applicant in this case did have a material interest for the purposes of section 18, but contended that the questions raised by the applicant were already satisfied. In light of this, I now consider that this review should be brought to a conclusion by means of a formal binding decision.

In conducting this review, I have had regard to the submissions and decisions of the Board, and to the submissions of the applicant, and to the correspondence between the applicant and the Board. I have also had regard to the provisions of the FOI Act and to the 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 Board was justified, under section 18 of the FOI Act , in refusing to provide a statement of reasons for its decision not to include a condition recommended by the Board's Inspector in its decision on a planning appeal.

Analysis and Findings

Section 18 of the FOI Act provides that a person who is affected by an act of a public body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act and of any findings on any material issues of fact made for the purposes of the act. Section 18(5) provides that a person has a material interest in a matter affected by an act of a 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."

The statement of reasons sought by the applicant relates to a decision by the Board concerning a matter which specifically affects his property, i.e. a planning decision to allow the building of a proposed development flush against the gable wall of his property, contrary to the recommendation of the Board's Inspector. In the circumstances of the case, I am satisfied that for the purposes of the FOI Act, the applicant has a material interest in a matter affected by the Board's decision not to include the relevant condition recommended by the Board's Inspector in its substantive decision on the appeal and I find accordingly. In any event, as I have outlined above, the Board now accepts that the applicant has a material interest in the matter.

Accordingly, I find that the Board was not justified, under section 18 of the FOI Act , in refusing to provide a statement of reasons for its decision not to include a condition recommended by the Board's Inspector in its decision on a planning appeal.

For the information of the Board and the applicant, I consider it useful at this point to outline what this Office considers should be the principal features of a statement of reasons having regard to section 18. A statement of reasons should be intelligible and adequate having regard to the particular circumstances of the case. The statement 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.

In the particular circumstances of this case, it seems to me that an adequate statement, for the purposes of compliance with section 18, 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. An adequate 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.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby annul the Board's decision in this case and direct that the Board issue a statement of reasons to the applicant that satisfies the requirements of section 18 of the Act.

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