Case number: OIC-123863-Z5F8Y6

Whether the Council was justified in refusing to provide a statement of reasons in relation to its consideration of Part M of the Building Regulations in the course of a decision it made on a specified planning application

 

11 August 2022

 

Background

In a request dated 9 March 2022, the applicant wrote to the Council concerning a specified planning application to build a hotel. She said the following:

“I would like to know if the Building Regulations 2010 Technical Guidance Document M was considered at all in the decision to allow the proposed development to go ahead? Specific sections are referenced in the residents group objection letter but do not feature in the decision and disability access is not mentioned in the list of main points of submissions. I would like to know what consideration, if any, was given to disabled access in this application and how the project was deemed to have satisfied Building Regulations 2010 Technical Guidance Document M?”.

She also sought copies of “any minutes, notes, correspondence and other documents regarding the pre planning consultations referenced in the planning application”.

This was followed by an exchange of emails between the parties concerning the validity of the request. The applicant clarified that she was seeking copies of relevant documents regarding the pre-planning consultations and that she was seeking;

“… a reason for decisions taken by the public body that affects me as such I am formally requesting to know if disabled access was considered in this decision making or what is the reason it was left out of the planning decision document.”

On 15 March 2022, the Council agreed to process the request as a request for access to records and a request for a statement of reasons.

On 11 April 2022, the Council issued a decision wherein it released records to the applicant. It also provided the applicant with a statement relating to the consideration of Part M of the Building Regulations (Technical Guidance M- Access and Use). Among other things, it said that all new buildings are required to comply with the Building Control Regulations. It said that in relation to ‘access and use’ of buildings, there is a rigorous process in place, where a separate independent application to the Building Control section is required in order to achieve compliance with the relevant Building Control Regulations. It said the developer of the building would be required by law to obtain a Disabled Access Certificate and a Fire Safety Certificate. It also noted that the planning applicant stated in correspondence received on file that “the building will in any case be subject to the normal requirements for a Fire Safety Certificate and Disable Access Certificate and full compliance with the Building Regulations will be achieved”. It said this was considered as part of the planning process.

On 28 April 2022, the applicant sought an internal review of that decision. Among other things, she argued that while she was informed in the decision that Part M of the Building Regulations were considered as part of the planning process, she was not given the reasons why objections set out in a letter of objection to the planning application submitted by a residents’ association “were invalid as regards Building Regulations M”. She included in her application for review extracts from the letter of objection expressing concerns about the proposed development not complying with Part M of the Building Regulations. She subsequently clarified that she was not seeking a review of the decision taken in respect of her request for records. On 24 May 2022, the Council affirmed its decision on the request for a statement of reasons, following which the applicant applied to this Office for a review of the Council’s decision.

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 correspondence between the parties as outlined above and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

While the Council provided certain information to the applicant in its decision letter of 11 April 2022, it argued in its submissions to this Office that it now believes it should have refused the application for a statement of reasons on the ground that the applicant did not have a material interest in a matter affected by the act for which a statement of reasons was sought, as required by section 10(5) of the Act. Accordingly, this review is concerned solely with whether the Council was justified in refusing to provide the statement of reasons sought.

Preliminary Matters                                                                        

Before I deal with the substantive issues arising, I should explain for the benefit of the applicant that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.  As such, we cannot examine the appropriateness, or otherwise, of the acts or decisions taken by public bodies for which the statements of reasons are sought.

Analysis and Findings

Section 10 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 to 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. Taking section 10 as a whole, this Office considers that the word "act" in the section must be interpreted as the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit. In addition, the reasons for the 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.

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. Before I can consider whether the applicant has identified an act within the meaning of section 10 or has a material interest within the meaning of section 10(5), I consider it appropriate to examine the nature of the application made to the Council in the first instance.

An application for a statement of reasons under section 10 of the Act must identify the particular act for which a statement of reasons is sought. Section 10 does not provide a mechanism for seeking answers to questions about what actions an FOI body did or didn’t take. Having regard to the correspondence between the applicant and the Council prior to the Council issuing its decision, I am not satisfied that the applicant has properly identified any particular act of the Council for which a statement of reasons must be provided.

It seems to me that in essence, the applicant submitted a request for information, as opposed to a request for reasons for a particular act of the Council. In her correspondence with the Council, she clarified that she wanted to know “…if disabled access was considered ...” in the decision making process on the planning application. In my view, and having regard to the information she included in her application of internal review, the applicant’s primary objective appeared, in essence, to be an attempt to clarify if the Council had considered the concerns expressed by the residents’ association in its letter of objection to the planning application. This is not the purpose of section 10. In any event, I am also of the view, that the Council clarified in its decision letter that it had, indeed, considered the requirements of Part M of the Building Regulations in the course of its consideration of the planning application. As such, there would be no basis for enquiring as to why the Council did not do so.  

I would also add, for the benefit of the applicant, that if her concern was why the decision in respect of the planning application had not addressed the various arguments raised by the residents’ association relating to disabled access, I am also of the view that any failure to do so would not comprise an act for which the Council would be required to provide a statement of reasons.

The requirement to provide a statement of reasons does not apply to every action of an FOI body. There are many acts/decisions taken by FOI bodies where section 10 has no relevance. The Oireachtas could not have intended that FOI bodies should be required, on demand, to provide a written statement of reasons and findings on any material issues of fact made for the purposes of every single action of the body. There will be many instances where a number of secondary actions/decision are taken in the course of making a substantive decision which affects a person and where that person has a material interest in a matter affected by that substantive decision or to which it relates. However, 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 seems to me that the substantive decision taken in this case was the decision taken in respect of the application. In my view, if it is the case that the substantive decision did not address the various arguments raised by the residents’ association, the failure to do so is not an act that can be described as the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit. The act that confers or withholds a benefit in such circumstances if the decision taken on the planning application, not any decision to address certain arguments in the decision notice.

Moreover, even if I was to accept that the failure of the Council to address the arguments in the decision notice was, indeed, an act of the Council for the purposes of section 10, I am not satisfied that the applicant can show that she has a material interest in a matter affected by that act. As I have outlined above, 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.

Section 10(5) excludes acts which have general applicability. 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. Arguably, if the failure of the Council to address the arguments in the decision notice had withheld a benefit, it would have been withheld from the public generally.

In conclusion, therefore, I find that the Council was not required to provide the statement of reasons sought.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision. I find that the Council was not required to provide the statement of reasons sought.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator