Decision
Ms. R and Transport Infrastructure Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-149976-H5J9C1
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You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Ms. R and Transport Infrastructure Ireland [2024] IEIC 149976 (16 December 2024)
URL: http://www.bailii.org/ie/cases/IEIC/2024/149976.html
Cite as: [2024] IEIC 149976
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Whether TII was justified in refusing an application under section 10 of the FOI Act for a statement of reasons as to why TII made a submission on a planning application, recommending that terms and conditions of planning regulation no. [X] be implemented in full.
13 December 2024
This review concerns a request for a statement of reasons. By way of background, the applicant, acting as executrix of her late mother's estate, in 2022, applied for planning permission to Cork County Council to develop the entrance to her late mother's property. The applicant sought that the driveway of the house be expanded for shared vehicular entrance, which the applicant contended would improve road safety and increase sightlines. The effect of this application is that it would remove a condition from another relevant planning regulation [Regulation No. X] which provided that the entrance permitted herein "shall be used to access the existing dwelling on site only."
In October 2022, TII as a statutory consultee, made a submission to Cork County Council on the planning application and advised that it considered the applicant's planning application to be at variance with official policy in relation to control of development on/affecting national roads as outlined in DoECLG Spatial Planning and National Road Guidelines for Planning Authorities (2012). In summary, it considered that a grant of permission for the proposed permission would set a precedent that would adversely affect the operation and safety of the national road network. In October 2022, Cork County Council refused the applicant's planning application.
On 9 October 2023, the applicant requested a statement of reasons from TII, on the fact that it made the above submission. The applicant alleged that page 2 of that submission, which recommended that the terms and condition of planning permission reg no. [X] be implemented in full, was an "act" which withheld a benefit of improved safety from her.
On 6 November 2023, TII issued its decision on the matter and refused the application for a statement of reasons. The decision noted that TII as a statutory consultee for planning matters that relate to the national road network, made a submission to the Council on the applicant's planning application, having been invited to do so by the Council. It set out that the objective of the submission was to reiterate national government policy in relation to the control of development on/affecting national roads. It said that Cork County Council is the planning authority that was making the decision in question and that TII had no veto in relation to the decision being made by the Council. It said that as a third party making a submission, TII's submission holds the same weight in the Council's decision making process as any other third party making a submission on the same planning application. As such, the decision maker found that the application was not an "act" which withheld the benefit, but rather that it was the "act" of Cork County Council coming to a decision on the application that withheld any benefit. TII formed the view that the making of the submission could be understood as only a secondary action. It also set out that notwithstanding this, the request did not meet the requirements under section 10(5).
On 1 December 2023, the applicant submitted a request for an internal review of TII's decision. The applicant argued that TII examined her application and recommend that the planning permission reg no [X] be implemented in full, and that due to the sightlines at the relevant junction following the roadworks in question, that TII increased the possibility of a criminal prosecution by any road user from the property and that therefore the applicant does have a material interest.
On 21 December 2023, TII affirmed its original decision. It provided further arguments in support of its position. On 20 June 2024, the applicant applied to this Office for a review of TII's decision. The applicant referenced TII's failure to address that it had recommended that the terms and condition of planning permission reg no. [X] be implemented in full was an "act".
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 TII and the applicant, as well as correspondence between the parties. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether TII was justified in its decision to refuse a statement of reasons on why it made a submission to Cork County Council on the applicant's planning application.
The Commissioner takes the view that the applicant bears the burden of proof in establishing the standing necessary to be entitled to a statement of reasons for an act of an FOI body. For example, the applicant bears the burden of showing that they have a material interest in the matter. The FOI Act is silent as to the standard of proof which should apply in such cases. The Commissioner takes the view that the standard required is that of "the balance of probabilities". An applicant seeking a statement of reasons for an act of an FOI body under section 10 must show to the Commissioner that, on the balance of probabilities, he or she has a material interest in a matter affected by the act or to which it relates.
Section 10(1) of the FOI Act provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act. Subsection (2) provides that nothing in section 10 shall be construed as requiring the giving to a person of information contained in a record which would fall to be refused as an exempt record.
As the applicant is aware, section 10(5) provides that a person has a material interest in a matter affected by an act of an FOI 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 act for which a statement of reasons is sought must affect a person particularly, albeit not necessarily exclusively. Where the act of an FOI body affects a wide class of people (i.e. a class of significant size having regard to all the circumstances) and applies equally to all members of the class, an applicant who is a member of that class does not have a material interest in a matter affected by the act for the purposes of the FOI Act. Generally speaking, therefore, the provisions of section 10(5) exclude acts which have general applicability.
Section 10(13) of the Act defines an "act" as including a decision (other than a decision under the FOI Act) of the body. The term "benefit", in relation to a person, is defined to include:
(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.
TII Submissions
In its submissions to this Office, TII maintain that it did not undertake an act as described by the applicant. It said that as a statutory consultee for planning matters that relate to the national road network, it made a submission to Cork County Council on the planning application in question, having been invited to do so by the Council. It said that the objective of the submission was to seek to uphold official Government planning policy in relation to the control of development on/affecting national roads, as outlined in the Section 28 Ministerial Guidelines 'Spatial Planning and National Roads Guidelines for Planning Authorities' (DoECLG, 2012). It said that the submission made was to draw attention to Section 2.5 of the Guidelines, which states that the policy of a planning authority should be to avoid the creation of any additional access point from new development or the generation of increased traffic from existing accesses to national roads, to which speed limits greater than 60kph apply.
It said that exercising this role as a statutory consultee on planning matters, TII was making a third-party submission to Cork County Council, which as the relevant planning authority, was making the decision on the applicant's planning application. It said that TII was not making this planning application decision and had no veto in relation to the decision being made by the Council. It said that as a third party making a submission, TII's submission holds the same weight in the Council's decision-making process, as any other third party making a submission, on the same planning application. TII states that as a result it has taken the view that its 'act' of making a submission on the above referenced planning application, was not the 'act' that gave rise to "-¦ withholding the benefit of improved safety -¦" rather, it argues it was the act of Cork County Council coming to a decision on the planning application that resulted in the perceived withholding of the benefit. TII maintain that its submission on the planning application could be understood as a "secondary action." It argues that from this perspective, TII's submission would therefore be considered as one of a number of secondary actions that occurred in the course of making a substantive decision on the planning application concerned. It pointed out this Office's own guidance on the matter which provides "-¦person may be entitled to a statement of reasons for the substantive decision, the Commissioner considers that section 10 does not entitle a person affected by the substantive decision to a statement of reasons in respect of each and every action which was taken in arriving at that decision." It said that for this reason TII did not issue the applicant with a statement of reasons and, therefore, did not comment in any further detail regarding its submission on the planning application.
In relation to meeting the material interest requirements of section 10(5), it said that notwithstanding the aforementioned, even if TII's 'act' of making a submission to the Council were to be regarded as a substantive decision, which TII does not accept, Section 10(5) of the Act requires individuals requesting a statement of reasons to have a material interest, in the sense that the consequence or effect of an FOI body's act was to confer on, or withhold from the person a benefit, without also conferring it on or withholding it from other persons.
It said that in this regard, as a statutory consultee on planning matters in relation to national roads, TII reiterates the same national planning policy advice to all planning authorities in relation to any similar planning application, which is to have regard to official Government planning policy and to avoid the creation of any additional access point from new development or the generation of increased traffic from existing accesses to national roads, to which speed limits greater than 60kph apply. It said that TII's third party submission did not exclusively confer or withhold any perceived benefits in this case, that TII does not suggest conferring or withholding in any other similar case. It states that this view is supported by this Office's guidance on the matter which provides that "the Commissioner takes the view that section 10(5) excludes acts which have general applicability, rather the act must affect a person particularly, albeit not necessarily exclusively. Where the act of an FOI body affects a wide class of people (i.e. a class of significant size having regard to all the circumstances) and applies equally to all members of the class, an applicant who is a member of that class does not have a material interest."
Finally, TII stated that it has had frequent engagements with the applicant on the matter, it said that it has frequently advised the applicant that the appropriate authority to address her concerns regarding planning and road safety matters at the aforementioned property, is Cork County Council, as the relevant planning and road authority. It said that it is neither a planning, nor a road authority but that it is a statutory consultee under planning legislation. It said that decision making with respect to land use planning is a matter for planning authorities or in the event of an appeal, An Bord Pleanála. It concludes that TII has no decision-making jurisdiction in relation to the planning issues raised by the applicant.
Applicant submissions
The applicant in her submissions has outlined that she has no issue with TII as a subscribed body making a submission/observation to a planning application. She argues however, that she does have a material interest in the submission, as it relates to her mother's property and she has a registered right of way through same. She maintains that the sightlines from the property had been reduced to an unsafe standard in 2016. She said that in TII making a submission to the Council to reject her planning application to improve the sightlines, it is preventing her safety as she has a greater risk of being prosecuted if a crash occurs at the junction and could be liable to pay compensation/financial penalty.
The applicant maintains that TII made a recommendation that Reg No. [X] be implemented in full, when TII could have requested the Council to grant planning permission based on the application for improved road safety, or they could have made no observations. She maintains that this could be described as a refusal to exercise a power or function which resulted in the withholding of the benefit from her. The applicant has also pointed out that the planner's report on her application which recommended a refusal, directly references the submission made by TII and in particular section 2.5 of the Guidelines quoted by TII in its report.
The applicant said that TII service providers designed the road in question and failed to have road safety audits undertaken or to undertake a risk assessment. The applicant has provided a number of submissions from TII to Cork County Council on various planning applications, in support of her request. The applicant has pointed out that some of the submissions have no observations from TII but that her own applications do have observations from TII.
Analysis
I consider it appropriate first of all to address the issue of whether the action in respect of which the applicant has sought a statement of reasons is an "act" for the purposes of section 10 of the FOI Act. If that action is not an "act" to which section 10 applies, the remainder of the issues are essentially rendered moot.
As noted above, the requirement to provide a statement of reasons does not apply to every action of an FOI body, and in order for a right to a statement of reasons to arise under section 10, this Office must first be satisfied that the action complained of is an "act" (that is, the exercise of, or refusal to exercise, a power or function) for the purposes of that section.
I am not satisfied that the action complained of in the applicant's FOI request constitutes an "act" of TII for the purposes of section 10. That is to say, the act of making a submission as a statutory consultee on a planning application, which was ultimately decided on by the Council, does not relate to the exercise of a "power" or "function", which may result in the conferring or withholding of a benefit. The process of providing a submission as a statutory consultee or as a third party, to the Council would in my view constitute a step or procedure in the process of deliberating on a planning application. Rather, I am of the view, that the "act" in question would have been the exercising of the Council's own power to refuse or affirm the application for planning.
Furthermore, in order for a decision or act of an FOI body to constitute an "act" for the purposes of section 10, the position of this Office is that the reasons for the impugned act must have a bearing on the outcome of whether a person receives or does not receive a benefit or suffers a loss or a penalty or other disadvantage. I am not satisfied that this is the case here. In this case, my view is that the reasons that TII decided to make a submission on the matter was to uphold official Government planning policy in relation to the control of development on/affecting national roads, which again, I would consider to be a step in the overall process of considering a planning application. A number of submissions can be made on planning applications by third parties, all of which would then be considered by the decision maker Cork County Council. Accordingly, I consider that the act that might be said to have had a bearing on whether or not the person receives or does not receive a benefit or suffers a loss or penalty or disadvantage was the decision of the Council to ultimately refuse the application. I am satisfied that TII's submission could be considered a secondary action that occurred in the course of making a substantive decision on the planning application concerned.
In circumstances where I have found that the action specified in the applicant's FOI request does not constitute an "act" for the purposes of section 10, I am not required to examine TII's arguments under section 10(5) of the FOI Act. Furthermore, where the actions specified do not engage section 10, I am not required to consider the questions of whether the applicant has established that she has been affected by the actions / that she has a material interest in the matter.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TII's decision. I find that TII was not required to provide a statement of reasons on the applicant's FOI request, on the basis that the acts/decisions in respect of which the applicant sought a statement of reasons do not constitute acts for the purposes of section 10, such that the applicant is not entitled to the statement sought.
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 not later than four weeks after notice of the decision was given to the person bringing the appeal.
Rachael Lord
Investigator