Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to records held by the Council relating to conditions 28 and 29 of a specified planning permission other than those already released

6 October 2020

Background

In a request dated 24 October 2019, the applicant sought access to a file titled “01/[XXX] Bond refund and services compliance file”. In his request, he said he understood that “the bond was refunded to [a named developer] in 2011” and that “Prior to refund conditions 28 and 29 were to be satisfied”. He also said “The extensive necessary rectification works carried out by [a named company] were completed in 2016”.

It appears that the Council interpreted the request as a request for access to the file specified and for access to records relating to conditions 28 and 29. In a decision dated 22 November 2019, the Council granted access to a Building Inspector’s report (the report) and refused access to two files described as “financial records” under section 36(1)(b). On the matter of records relating to conditions 28 and 29, the schedule of records accompanying the decision appears to indicate that the report released was of relevance to condition 28. It also appears that records relating to condition 29 were refused under section 15(1)(a). The Council’s decision contained the following note:

“In 2011 Taking in Charge was dealt with by Area offices. In this case the Dunshaughlin office. Planning does not have the record of snag lists compiled in relation to this case. An examination of computer records has not resulted in finding this record. I have requested a search of old hard copy records from the Dunshaughlin office (if they still exist going back to 2011) & will provide same if these records are located ) Notwithstanding the forgoing it should be noted as per the Building Inspector’s report of 8th June 2011 that they were satisfied all snags were complete & that the development was constructed in accordance with the relevant planning permission(s)”.

It appears that the applicant did not receive the Council’s decision and on 6 December 2019, he sought an internal review of the deemed refusal of his request. On the same day, the Council provided the applicant with a copy of its decision. In a subsequent email on 9 December 2020, the applicant expressed a number of concerns about the development. Among other things, he suggested that records relating to condition 29 should exist if the conditions were met.

On 6 January 2020, the Council issued its internal review decision in which it affirmed its original decision. It also said it had not been possible to locate records to which access had been refused under section 15(1)(a).

On 20 January 2020, the applicant sought a review by this Office of the Council’s decision.  In his application for review, he alleged that the Council returned a performance bond prematurely in 2011 while the development was incomplete without some of the conditions attaching to the planning permission having been adhered to. He said that conditions 28 and 29 set out the terms and conditions required for the issuing of a refund and that to date, he has not been able to get a copy of the handover information with the exception of a short letter from the inspector attached. He said he had asked to see all of the records which were required under condition 29 specifically.

He further said that he had specifically requested the information that was to be lodged by the developer prior to the refunding of the bond and that this information has not been received. He said that to date, all he had received is the report which makes no reference to the requirements of Condition 29 nor does it include a copy of the ‘snag list’ referred to in the report.

In an email dated 22 January 2020, the applicant said that the information required specifically is contained in condition 29 of the planning permission. In a subsequent email dated 3 February 2020, he reiterated his view that the development was not completed in accordance with conditions 28 and 29. He alleged that the developer does not appear to have submitted to the Council the information set out in condition 29 prior to refunding the bond. In an email of 4 March 2020, he said his focus was purely on the planning conditions attached and the lack of specifics in the inspector’s report.

At this point, I think it would be useful to set out the details of conditions 28 and 29. Condition 28 required the developer to lodge a cash deposit with the planning authority as a security for the satisfactory completion and maintenance until taken in charge by the Council of various services within the development. It also provided that in the event of non-completion or maintenance of the services, the planning authority could use the funds for the satisfactory completion and/or maintenance of any part of the development.

Condition 29 provided that after completion of the development, the developer must lodge certified full plans, drawings and details of the entire development as completed in a specified format.

During the course of the review, Ms Lynch of this Office asked the Council to provide details of the searches it undertook to locate records of relevance to condition 29 and details of its records management practices relating to such records. She also invited the Council to make a submission in respect of the two files of financial records that were initially refused under section 36(1)(b). On 30 April 2020, the Council provided a submission in relation to the records that were refused under section 15(1)(a). It explained that while it had not been possible to conduct a comprehensive search of the Dunshaughlin office at the time of the request due to refurbishment works, it had since gained access to that office and files stored therein and it located a further file that it made available to this Office.

It said the file, comprising records of the Clerk of Works from the relevant period, contained no evidence of either a snag list of underground services for the period 2010/2011 or an “as-constructed” drawing for the development. Having examined the file, I am satisfied that it contains no records falling within the scope of the applicant’s request.

On the matter of the records refused under section 36(1)(b), the Council said it had reviewed its position in respect of those records and considered that the majority of the records could be released. It subsequently released those records to the applicant. It argued that a number of the records should continue to be withheld under section 36(1)(b).  Having examined these remaining records, Ms. Lynch informed the applicant of her view that most of these records did not relate to conditions 28 and 29 of the planning permission, and therefore were outside the scope of the review.  He agreed to remove these records from the scope of the review.  She also informed him that four records (two in part) remained in scope for which section 36(1)(b) was claimed. Given the information already released by the Council, the applicant decided not to pursue access to these four records. All of the records for which section 36(1)(b) was claimed have now been removed from scope of the review.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made by the applicant and to the submissions made by the FOI body in support of its decision.  I have also had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with the question of whether the Council was justified, under section 15(1)(a) of the FOI Act, in refusing access to records held by the Council relating to conditions 28 and 29 of the planning permission for the development, other than those already released. 

Preliminary Matters

This review has its background in issues relating to the development under planning permission reference 01/[XXX].  According to the applicant, there were issues with the development which subsequently required rectification works.  The applicant is of the view that the bond should not have been refunded to the applicant until such time as the relevant conditions and documentation as set out in condition 29 were satisfied /completed.  I must point that this Office is not an alternative dispute resolution body and is not our role to adjudicate on how an FOI body carries out its functions. The role of this Office is to determine whether the provisions of the FOI Act were complied with by the FOI body. Therefore, I can make no comment on those aspects of the matter other than addressing the question of whether the Council has carried out all reasonable steps to locate the records sought and if so, whether the applicant is entitled to access any such records. 

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. My role in such cases is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his or her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable.

In the circumstances of this case, the planning permission granted by the Council included conditions 28 and 29, which are of particular interest to the requester and are set out above. The Council’s position is that the requirements of condition 29 were met by the report, which was released, and that the refund of the bond to the developer was approved by this report. 

In its submissions, the Council has set out the details of searches undertaken of the Council’s data management systems, email databases and file storage locations.  It states that searches were undertaken of i-Plan, (planning database), i-Docs (documents storage system) and network drives using relevant keywords and terms, including the planning reference, the estate name, and the estate registration number.  

It also states that the Council’s IT Department undertook searches of the email database of relevant employees using names and other relevant terms and keywords, such as the estate name, the developers company names and names of representatives of the developer. No records apart from those already identified were found as a result of these searches. 

A physical search was conducted of the Council’s Building Facilities section which did not locate any relevant records.  As outlined above, it was recently possible to access the area office and a file was located.  However, the contents of the file do not fall within the scope of this review. 

The Council has recently engaged with relevant staff on this matter.  According to its submission, the Council believes that the records and information specified in condition 29 was not submitted by the developer for a number of reasons.  These include the extensive searches undertaken, engagement with relevant staff and the established practice at the time that given the nature of the development, it was never intended to be taken in charge by the Council. 

The Council is of the view that, given the nature of the development, it would have relied on the design drawings, site inspections and dye testing to assess the development.  While there is a reference to a “snag list” in the report, there is no evidence that an actual record was created at the time.  According to the Council, the Clerk of Works was satisfied from site inspections, as per his report, that the services within the development had been constructed in accordance with the approved design and thus “as constructed drawings” were not necessary. 

It has further set out that the conditions in the planning permission were standard at the time but not necessarily applicable to the nature of the development.  For example, the Council says that it was never intended that this development be taken in charge by the Council and as such the requirement for the submission of the records specified in condition 29 would not have been deemed necessary.  It satisfied itself based on the engagement of the building inspector that the development was constructed in accordance with the preconstruction drawings and as such was sufficient for the bond to be refunded. 

In summary, the information provided by the Council suggests that there is no reason to believe that the records required under condition 29 were ever provided to or sought by the Council.   It also seems to be the case that is was not unusual given the nature of the development, and that the report was the basis of the refund of the bond. There is documentary evidence of the report being approved at a more senior level and the refund of the bond being approved.

While not satisfactory for the applicant, it seems to me that all reasonable steps have now been taken by the Council to search for the records sought. I find that section 15(1)(a) applies to the records sought regarding condition 29. 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Council.  I find that section 15(1)(a) applies to the records relevant to condition 29 of the planning permission reference 01/[XXX]. 

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated no later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty

Senior Investigator