Cinneadh
Messrs X and Cavan County Council
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-136441-X9V7R8, OCE-138655-N0Z7X4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-136441-X9V7R8, OCE-138655-N0Z7X4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council conducted adequate searches such as to identify all information relevant to the appeals, in accordance with the implicit requirement of article 7(5), and released such information save where pertinent exemptions apply.
22 October 2024
1. The appeals relate to requests for information submitted to the Council, respectively, on 26 January 2023 and 3 February 2023 (subsequently revised and submitted on 17 February 2023), concerning information associated with a planning application for development in Cavan Town and its subsequent appeal to An Bord Pleanála on 22 June 2022 (see references immediately below this paragraph) as follows:
Request 1 made on 26 January 2023 (appeal OCE-136441-X9V7R8)
[In reference to Cavan County Council Ref 21528, An Bord Pleanála- Case reference: PL02.313863]:
“[Item 1] All pre - planning meetings held between Cavan County Council and the developer.
“[Item 2] All compliance submissions/correspondence made by the developer.
“[Item 3] All information regarding environmental surveys carried out by CCC.
“[Item 4] Can CCC planning also confirm what conditions have been completed and correspondence from council to applicant which confirms compliance has been agreed completed from the Councils side for the particular conditions met.
“The following case will provide clarity and context.
Request 2 made on 3 February 2023 (revised on 17 February 2023) (appeal OCE-138655-N0Z7X4)
“I make a request for all records (emails, documents, correspondence, memos, minutes, digital messages (texts, WhatsApp, internal messaging etc) relating to Cavan Council Planning reference 21528 (from date of first pre -planning meeting) and An Bord Pleanála appeal PL02.313863 that do not already appear on Cavan County Council Planning Portal (up to 17:00 hours 16/02/2023) under article 11 of European Communities (Access to Information on the Environment) Regulations 2007 to 2018. You do not have to supply me with copies of my own correspondence with the council in relation to this planning case. Please supply a schedule of records and decisions in relation to each as required by AIE regulations. My request specifically refers to planning application 21528. Any department within CCC that has information or has had correspondence, made decisions in relation to this planning application.”
2. As each of the appeals relates to the same subject matter, it is considered appropriate to review both together and to issue a composite decision in response to both.
Timeline of Request 1
3. The Council responded to the first request (Council reference 4 AIE 23) on 1 February 2023, stating that “[t]here are no records in Cavan County Council in respect of your request referenced Cavan County Council Ref 21528 and An Bord Pleanála- Case reference: PL02.313863. ”
4. The appellants made an internal review request on 3 February 2023 in the following terms:
“[Item 1] It has already been confirmed to a member of our group in a previous mail that these pre-planning minutes do exist. I was informed I had no right to them and now request them under AIE regulations. Also, in the Further Information Planners Report document dated May 25th 2022 it is stated that the developer had pre-planning consultation with the Senior Planner and the Agent on June 26th 2019. (I have a copy of this report saved). Again according to the same document, in the same report pre planning consultation took place on the 15th of November 2021 and Friday the 19th of November 2021. (See attachment)”.
“[Item 2] Can you confirm that no records exist rather than “There are no records in Cavan County Council” as records may exist in storage, digitally or locations outside of the physical council. This is to confirm [sic] with proper legal declarations under AIE. As part of this request I would have expected to see a submission from Cavan County Council to An Bord Pleanala in relation to the appeal and the council's comments on same and or a submission from the developer in response to the appeal which would have been forwarded to the council. I would also expect to see a development contribution calculation and compliance via payment by developer.”
“[Item 3] Can you confirm that no records exist rather than “There are no records in Cavan County Council” as records may exist in storage, digitally or locations outside of the physical council. This is to confirm [sic] with proper legal declarations under AIE.”
“[Item 4] Can you confirm that no records exist rather than “There are no records in Cavan County Council” as records may exist in storage, digitally or locations outside of the physical council. This is to confirm [sic] with proper legal declarations under AIE.”
5. By email dated 7 March 2023, the Council issued its internal review decision, annulling the original decision and granting access to“all of the newly discovered records” consisting of four sets of information which were listed on an accompanying schedule of records. The information consisted of emails, email threads and three documents in pdf format.
6. The appellants brought this appeal to this Office on 13 March 2023 on the basis that the information provided was limited, irrelevant and inadequate.
Timeline of Request 2
7. The Council responded to the second request (Council reference 5 AIE 23) on 15 March 2023, attaching“copies of all records in respect of your request.” The records consisted of the same four sets of information that had been released to the appellants in response to Request 1 (see paragraph 5 above).
8. On 3 April 2023, the appellants made an internal review request on the basis that the“information…requested has not been provided. Please see below.” The request then goes on to refer to a response, received from the Council, to correspondence from the appellants of 11 March 2023. This correspondence has not been seen by this Office. The response, made on 15 March 2023, according to the request, is as follows:
“I have liaised again with Planning Section regarding your further email dated 11 March 2023, and your queries raised again on Items 1 and 2.
“Please be advised:- Item 1: no further records
“Item 2: both matters raised are available on line via a planning search of 21/528. See link for your information: - https://www.cavancoco.ie/services/planning-building/planning-permission/online-planning-search/ ”
9. The internal review request then refers to the four-part original and internal review requests made in Request 1, see paragraphs 1 and 4 above, and by reference bases the internal review request for Request 2 on the information sought in those paragraphs, textually as follows:
“Request 1 : I have requested “all pre - planning meetings minutes” held between Cavan County Council and the developer. This information has not been provided and I have provided dates that pre-planning consultation took place. Under the Planning and Development Act 2000 this information should be viewable online and is a legal requirement of a planning application .
_“Request 2 : All compliance submissions/correspondence made by the developer. A development contribution calculation and compliance via payment by developer is not viewable online .
“Request 3 : All information regarding environmental surveys carried out by CCC on Killymooney Lough and any information regarding the WFD. How did Cavan County Council Planning Department/Environmental Department consider “mitigation” purposed [sic] by the Developer if no surveys or information exists? No information has been provided by CCC relating to the Environment or to the application of the WFD [Water Framework Directive].
_“Request 4 : Can CCC planning also confirm what conditions have been completed and correspondence from council to applicant which confirms compliance has been agreed completed from the Councils [sic] side for the particular conditions met. Limited information has been provided on this request. ”
[Emphasis in all instances made by the appellants]._
10. The Council issued an internal review decision by email dated 21 April 2023, responding to each of the requests in the paragraph above individually and asserting (i) that all relevant information had already been provided (request 1 above); (ii) that no information existed, in respect of requests 2 and 4 above, because no planning permission was in place requiring compliance submissions or compliance with conditions; and (iii) all information pertaining to request 3 was available online or by public viewing at the planning offices of the Council. It added that in regard to the calculation of the development contribution (also request 2 above) payable by the developer, this information was contained in the planner’s report available online or by public viewing at the Council’s planning offices.
11. On 24 May 2023, the appellants appealed the Council’s decision, relating only to request 3 above, to this Office.
12. I am directed by the Commissioner for Environmental Information to carry out a review of this appeal, which I have now completed under article 12(5) of the Regulations. In so doing, I have had regard to the submissions made by the appellant and the Department. In addition, I have had regard to:
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention);
• the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’);
13. What follows does not make findings on each and every argument advanced but all relevant points have been considered.
14. This appeal is concerned with whether the Council has carried out adequate searches for information such as to identify any and all information that might be relevant to the two appeals at issue, in accordance with the implicit requirement of article 7(5) of the AIE Regulations so to do, and to release such information save where pertinent exemptions from release apply.
Preliminary matters
15. In its internal review decision letter for Request 2, of 21 April 2023, the Council advised the appellants that an appeal of the decision was possible by writing to the Office of the Information Commissioner (OIC). This was factually incorrect, as appeals against internal review decisions in respect of AIE requests are to be sent only to the Office of the Commissioner for Environmental Information (OCEI). The Council should have advised that an appeal fell to be made to the OCEI, in fulfilment of its obligation set out in articles 11(4)(b) and 12(3) of the AIE Regulations. It is recommended that public authorities prepare and have at the disposal of their AIE teams, separate template letters specifically for responses to AIE requests. It is neither correct nor appropriate to notify requestors to make an appeal to a body, in this case the Office of the Information Commissioner, which has no competence over appeals arising from an AIE request.
16. In its acknowledgment of the internal review request in respect of Request 1, made and received on 3 February 2023, the Council notified the requester that a decision would be notified“within one month of receipt of your request” and, at the latest,“you can expect to receive a decision by 6 March 2023.” The AIE Regulations are quite clear in respect of deadlines for making decisions by public authorities. In respect of a request for internal review of a first instance decision, article 11(3) specifies that a decision“shall be notified to the applicant within one month from receipt of the request for internal review.” This signifies that a decision was required in this instance by 3 March 2023 and not by 6 March 2023 as indicated by the Council. Though the article is not explicit in requiring a decision within a ‘calendar’ month, this is the natural meaning of the word and that which is attributed to it by this Office. It is to be distinguished, for example, from the decision required from a public body within 20 working days in response to a Freedom of Information (FOI) request. A “month” in article 11 (and indeed in article 7(2)(a) in respect of a first instance decision) does not equate to 20 working days, a timeframe which excludes weekends and bank holidays. I note, for reference, that 6 February 2023 was a bank holiday. If the Council calculated its internal review decision timeframe by excluding weekends and this bank holiday, it misapplied the requirement of a decision within one month stipulated by the Regulations. Public authorities are reminded to familiarise themselves with the requirements of the AIE regime.
17. I note, further, that the internal review decision that issued in respect of Request 1, though due by 6 March 2023 in the Council’s misapplied interpretation of article 11(3), was dated 7 March 2023, as the appellants have indicated in submissions to this Office. This is regrettable, particularly given, as in this instance, the Council’s having explicitly given a decision date,“at the latest” , of 6 March 2023. Further, the Council appears to be mistaken in stating in its internal review decision, dated 7 March 2023, that the decision-maker had made a decision on the review on 3 February 2023, the actual date of receipt of the internal review request. It is hardly credible that it could have conducted “another trawl through [its] records” in such a short timeframe. Lastly, if, as the appellants assert, the decision was not received until 8 March 2023, this means that the decision was a full five days overdue. I take the opportunity to urge public authorities to implement adequate AIE training for all staff that are required to engage with requesters of environmental information under the AIE regime.
18. I make the final point that it is outside the remit of this Office to adjudicate on how public authorities carry out their functions generally, including with respect to their environmental information management practices. This Office has no role in assessing how public authorities collect, maintain and disseminate environmental information nor in enforcing transparency generally insofar as this falls outside the scope of an AIE request. Moreover, it is not within the scope of the functions of this Office to adjudicate on a planning authority’s conduct or its adherence to any regulatory requirements within that process. The role of this Office relates only to the review and decision on appeals against the non-release or part-release of environmental information by public authorities under the AIE Regulations within the scope of an AIE request, and no more than that.
19. The issue to be considered in both appeals is whether Cavan County Council, having asserted that it has provided to the appellants all the information that it holds and that is relevant to the requests, has complied with the implicit requirement of article 7(5) of the AIE Regulations to conduct adequate searches such as to identify that information.
20. It is a useful exercise to summarise, insofar as is possible and in respect of each appeal, the information that the appellants assert is either inadequate or has not been provided, in order to assess whether adequate searches have been carried out by the Council for that information. As both requests can be regarded as cumulative in nature, and as the internal review request in Request 2 is based textually on the original request in Request 1, it appears to me appropriate to use the subject matter of the former as the basis upon which to assess the matter of adequate searches in both appeals. From both appeals, the following is the information that the appellants assert has not been provided by the Council:
a. Pre-planning minutes of meetings (or consultations) held between the Council and the developer on 26 June 2019, 15 November 2021 and 19 November 2021 (see paragraphs 4 and 9 above). In submissions to this Office, the appellants assert that:
i. according to planner’s reports of 15 October 2021 and 25 May 2022, a pre-planning consultation took place with the Council’s Senior Planner on 26 June 2019. They point to a discrepancy between these two reports as, in the former, there is a hand-written annotation stating that “no meeting took place” with the initials of the Senior Planner beside it; whereas in the latter report, there is no such annotation;
ii. in an email from the Council’s planning enforcement unit of 18 January 2023 sent to a certain individual, it is stated that “[n]o copies of pre-planning meetings were submitted with the [planning] application. I will enquire with the senior planner & data protection officer as to whether or not details of pre planning can be disclosed as they may be confidential under GDPR regulations”; the appellants are of the view that there is a contradiction in this statement, giving to understand on the one hand that there are no copies of pre-planning meetings, while on the other giving to understand that they do exist, and that if they do exist, they should have been provided with copies;
iii. despite reference in the planner’s reports to pre-planning meetings having taken place with the Council on 15 November 2021 and 19 November 2021, no minutes of those meetings have been provided; the investigator assigned to these appeals notes that these reports describe how “changes have been agreed with Cavan County Council at pre-planning consultation” on the dates mentioned;
iv. according to a report in the Anglo-Celt newspaper of 13 May 2021 which makes reference to the proposed development at Aughnaskerry, the subject of the planning application at issue, the Council’s Senior Planner is quoted as explaining that the local authority had an “open and interactive” relationship with the site owner; the appellants question how such a relationship can have led to the absence of any substantive information, including minutes of meetings and copies of correspondence between the site owner and key personnel at the Council.
b. All compliance submissions/correspondence made by the developer. In their internal review request pertaining to Request 1, they express their expectation “to see” a submission from the developer in response to the appeal [to An Bord Pleanála] which would have been forwarded to the Council; and an expectation of seeing “a development contribution calculation and compliance via payment by developer.” I note for the record that the internal review request also expresses an expectation of seeing “a submission from Cavan County Council to An Bord Pleanala in relation to the appeal and the council's comments on same”. This expectation seems to be an addendum made to the original request’s item no. 2, which concerned only submissions and correspondence relating to the developer, and not the Council. As it appears to me to be an extension to the original request rather than a reiteration of it, I shall ignore in this decision the element of the internal review request that relates purely to the “submission from Cavan County Council” and the Council’s “comments on same”, as it would not be appropriate to extend the scope of the original request, which would do an injustice to the public authority. In any event, I note that the Council did not respond specifically in its internal review decision to this particular expectation, therefore I consider the matter to be moot.
c. All information regarding environmental surveys carried out by CCC on Killymooney Lough and any information regarding the WFD [Water Framework Directive]. This request for information is the basis of the appeal to this Office in Request 2. I note that in the internal review request in Request 2 and its subsequent appeal to this Office, this element of the appellants’ request has been expanded to include “on Killymooney Lough and any information regarding the WFD.” As noted in the previous paragraph, this appears to be an extension of the original request and I deem it to fall outside the scope of that request. The addition of further requests or details in internal review requests submitted to public authorities is not appropriate or reasonable, as they essentially constitute further requests or details that should have been expounded upon and brought to the attention of the public authority at the time of the original request. It would be an injustice by me to expect the Council in this instance to accept the broadening of this particular element of Request 1, which, as stated, is the essence of the appeal to this Office in Request 2. In any event, as will be seen further below, this further broadening of this element of the requests appears not to have discommoded the Council to any great degree. In submissions to this Office in respect of Request 2, the appellants note that:
i. they are specifically looking for “information, studies, reports/surveys etc.” carried out by the Council or commissioned by the Council rather than for environmental reports and studies carried out by undertakings paid for by the developer;
ii. they question how the Council could have considered “mitigation” proposed by the developer in this case if no surveys had been carried out by the Council or if it had no further information by which to consider the matter.
d. The conditions that have been completed and correspondence from the Council to the applicant which confirms compliance has been agreed / completed from the Council’s side for the particular conditions met.
21. Given its assertion that no information other than that already furnished to the appellants was held by the Council, the question arises as to whether the searches for information carried out by it were sufficiently thorough such as to confirm that the information it released to the appellants was all the information it held that was relevant to the requests, in other words whether the Council has complied with articles 7(1) and 7(5) of the AIE Regulations which, cumulatively, require public authorities to make available to requesters any environmental information relevant to their requests and, should they not hold such information, to inform requesters of this fact as soon as possible. In cases where public authorities assert that requested information does not exist or is not held by them, a prerequisite to show compliance with these articles is that they carry out, and demonstrate they have carried out, adequate searches for the requested information.
22. In respect of Request 1, the Council altered its position with regard to the non-existence of information stated in its original decision letter by providing four records with its internal review decision, which indicates that a search was carried out subsequent to the internal review request.
23. Following receipt of the appeal in regard to Request 1, this Office received an email dated 17 April 2023 from the Data Protection and FOI [Freedom of Information] Unit of the Council containing a submission from the Senior Planner that states that“following the carrying out of a thorough search for the information requested …. there are no new records other than those previously provided following the internal review. All information with regard to the NIS [Natura Impact Statement] and AA [Appropriate Assessment] are available on the public file. We do not hold additional records in this regard.”
24. On 22 September 2023, the Council’s Senior Planner explained to this Office that IT [Information Technology] searches had been carried out with date parameters and that nothing further to the information that had already been provided had been found.
25. In submissions to this Office of 26 July 2023, the Council went into some detail in regard to the searches it had undertaken in order to locate and identify information relevant to Request 1, in response to a request from this Office for full and complete details of the steps and searches it had carried out and of its records management, retention and disposal policies in respect of the specific information/records sought in this case. I set out below the main points of the Council’s response:
a. The practice for filing pre-planning meeting details falls to each officer holding such meetings. This is either in the form of being recorded online or hard copy. Storage, filing and archiving at the time of the AIE request and during the period of relevant events was the responsibility of each planning officer. A thorough search took place of records, both online and hard copies, of the relevant planning officers. All information in this regard was forwarded to this Office. I confirm that this information was provided to the appellants.
b. With regard to the retention policy for pre-planning documents, there is no limit currently on the timeframe for retention of such documentation.
c. It is not likely that information has been destroyed. The Planning Department is very aware of the need to retain information such as pre-planning notes, and, as such, would never consider destroying same.
d. The method used to conduct searches was both electronic and physical. Individual pre-planning hard copy files were searched. Also, relevant online preplanning folders were also searched. Though the area planner at the time no longer works at Cavan County Council, searches of documentation associated with this area planner were carried out. A search was carried out by the Council’s IT section for the dates specified in the [internal review] request and all relevant information in this regard was submitted to this Office. These dates were 26 June 2019, 15 November 2021 and Friday 19 November 2021. I confirm that the information supplied to this Office was also provided to the appellants.
e. It is unlikely that information has been misplaced or misfiled. Wide searches of pre-planning folders and notes were carried out but these searches did not reveal further information other than that which has already been provided.
f. The files of individuals searched included those of the Senior Planner, the Assistant Planner, the Area Manager, and the Executive Engineer of the Road Design Office. Information resulting from the outcome of these searches was provided to this Office. I confirm that the same information has been provided to the appellants.
g. It is the view of the Council that it does not hold records additional to those already released. It says that a thorough, exhaustive search was undertaken in this case as outlined in the preceding paragraphs.
26. In addition to the explanation above on the searches conducted, the Council gave some background to its failure initially to provide certain information to the appellants by stating that the planning application in this case had been received by it on 24 August 2021, that the Council’s decision was subsequently appealed to An Bord Pleanála on 20 June 2022, and that a hard copy of the file was posted to An Bord Pleanála on 24th June 2022. It says that due to an administrative error, “five internal reports” were not included in that despatch to An Bord Pleanála, due to which they were not scanned to the Council’s public online portal as is practice. It does state, however, that the contents of the reports were contained within the planner’s reports, which had been uploaded to the online portal and also sent to An Bord Pleanála, inferring that access to the reports was available to the public by viewing the said planner’s reports. It also stated that the five reports were also available for public viewing on the hard copy file at the Council’s Planning Offices. It added that An Bord Pleanála subsequently requested copies of these reports on 8 June 2023 whereupon the Council noted that the reports had not been scanned to the online portal at the time due. However, since then the Council has uploaded these files. I take the opportunity to note from an email forwarded to this Office by the appellants that the Council furnished them with the above explanation by email on 27 July 2023 together with a statement that at no stage had the Council knowingly withheld information from the appellants and that all information relating to the planning application in question had been available via the online portal or the physical file or both. Notwithstanding this explanation, the appellants expressed grievance to this Office arising from this incident regarding the Council’s “lack of transparency” which, they added, raised concerns about its compliance with the AIE Regulations and “European law” (which I interpret to mean the AIE Directive). As I have expressed above, the function of this Office is to review and adjudicate on appeals made in respect of requests for information addressed to public authorities and not on matters internal to those authorities that fall outside the confines of a request for information. For present purposes, I accept the explanation that the Council has given regarding the error in not uploading the reports in question to its planning online portal as well as that relating to the fact that the reports were accessible in physical form and were included in the uploaded planner’s reports, such that the five reports in question were available at all times to the general public. While the occurrence of this administrative error was unfortunate, the Council appears to have acknowledged it at the first opportunity, and then took steps to remedy the issue.
27. As Request 2 replicates the content of Request 1, as explained at paragraph 20 above, I deem the submissions from the Council of 26 July 2023 to apply equally to Request 2. This is because, as each of the requests concern the same planning application and the same environmental information, the Council has relied on its submissions relating to Request 1 in respect of Request 2 also.
28. However, notwithstanding its assertion of having carried out adequate searches for information and released all relevant information to the appellants, the Council was able to identify and locate still further information arising from an additional search for information that occurred on foot of receipt of a third, related request for information from the same appellants concerning the same planning application and related material. This third request is the subject of a separate appeal to this Office and, though related to the information the subject of Requests 1 and 2, contains matters that are more appropriately dealt with in a separate decision. The identification of the additional information following this third request was communicated to this Office by the Council on 24 July 2023. The investigator assigned to the appeals covered by this decision has had the opportunity to review the original and internal review decisions relating to that third request and confirms that information, additional to that which had issued to the appellants in response to Requests 1 and 2, has been released to the appellants. That information includes records relating to the zoning of the land in question, in response to that aspect of the third request, following a decision by the Council to“broaden the scope” of that third request. The purpose of my allusion to this third request is to draw attention to the yet further searches that were carried out by the Council for information related to the subject matter of all three appeals, including the two under consideration in this decision. I take note of the internal reviewer’s statements to the appellants in that third request that“I wish to confirm that I am hereby considering the full remit of records relative to the above planning decision and its related zoning” and“the Council is now providing a full and adequate reply to the scope of the [third] original request.”
29. Notwithstanding those further searches and the submissions made to this Office by the Council, in an effort to bring clarity to certain statements contained in the submissions, and in order to convey to the Council certain assertions made to this Office by the appellants, the investigator requested further responses from the Council in September of this year, which were received shortly thereafter. I set out below the combined responses given by the Council to this Office in respect of each aspect of the request, which are followed, in turn, by my findings in respect of each:
Part 1 of Request 1 – all pre-planning meetings between CCC and the developer
a. In regard to this part of the request, the Council stated that records relating to the pre-planning meetings had been released to the requester. The Council stated, further, that it had carried out a search using the specific dates referenced in the [internal review] request and had contacted the relevant staff members who were involved in the meetings to access records in respect of these meetings. The investigator assigned to these appeals has reviewed the information released to the appellants and confirms that records 2, 3 and 4 consist,inter alia , of emails that confirm meetings having taken place on 15 November 2021 and 19 November 2021. However, this information did not contain minutes of either meeting, nor contained information on the meeting of 26 June 2019 to which allusion has been made by the appellants. In the supplementary submissions made by the Council to clarify certain matters, the Council stated that its planning enforcement unit’s email of 18 January 2023 stating that“no copies of pre-planning meetings were submitted with the application" indicates that the [planning]“applicant/developer did not submit a copy of any pre planning records with the initial planning application submitted to Cavan County Council on 24/08/2021” [see para. 21 a. ii. above]. It goes on to explain that the email’s reference to the requirement for consultation on the matter of whether pre-planning details can be disclosed arising from GDPR considerations merely advises that the disclosure of any record is subject to GDPR conditions and data protection legislation, and does not confirm whether pre-planning records in this case either do or do not exist. In respect of the alleged discrepancy between the planner’s reports of 15 October 2021 and 25 May 2022, where the former contained a hand-written annotation made by the Senior Planner to the effect that no meeting took place on 26 June 2019 and the latter did not, the Council confirmed that“no pre planning consultation took place between the [planning] applicant/agent acting on behalf of the applicant and the Senior Planner” on that date. It went on to explain that this“inaccuracy in the Planners Report” compiled by a former Assistant Planner in the report of 15 October 2021“was highlighted by the Senior Planner and was annotated as such with the comment ‘no meeting took place’ initialled by … [said] Senior Planner and signed [by him] on 18 October 2021.” The second report, the Council explained, of 25 May 2022“was compiled by a different Executive Planner” and the inaccuracy identified in the first report by the initialising of the Senior Planner was“inadvertently … not removed” from this second report. Finally, the Council indicated that the second report was a continuation of the first Planner’s Report and“focuses on assessing the Further Information, technical reports and observations received. Therefore, to reiterate, no pre planning consultation took place with the Senior Planner and therefore no record exists.” The Council further indicated that a preplanning consultation took place on the Microsoft Teams online platform with representatives from the Council’s Road Design Team, the Cavan Belturbet Municipal District, Cavan County Council and Michael Fitzpatrick Architects on Monday, 15 November 2021. It indicated that records from this meeting were released to the appellants by the Road Design team previously and that no member of staff from the Council’s Planning Section attended the meeting, for which reason the Planning Section has no record of the meeting. The Council further indicated that a consultation meeting was held on Friday 19 November 2021 between its former Assistant Planner, Cavan County Council and a representative of Michael Fitzpatrick Architects Ltd., and that an email thread, released to the appellants, was the only record relating to this meeting.
b. Following these detailed explanations, I am of the view that it is clear that:
i. the Council holds no minutes of the meeting asserted to have taken place on 26 June 2019, as it did not take place, as explained in detail above;
ii. that, as attested to by records 2, 3 and 4 released to the appellants, the meetings of 15 November and 19 November 2021 did take place, the former without the attendance of the then Assistant Planner, and that no information, other than that already released to the appellants in relation to these meetings is held by the Council. This is evidenced by the searches carried out by the public authority and attested to by its several robust assertions to this effect. I will make the point that whilst it might seem unusual that no minutes of these meetings have been identified and whereas best practice might dictate that minutes should be taken, I am of the view that it is not beyond the realm of the possible that none were, in fact taken, in this instance. Further to the last point, the investigator assigned to these appeals has reviewed the second Planner’s Report of 25 May 2022 containing certain further information that had been requested of the planning applicant, wherein, as indicated by the appellants, at each of pages 50, 51 and 52, reference is made to one or other of the meetings of November 2021. The investigator has noted that the following commentary accompanies each of two of the references:“The following changes have been agreed with Cavan County Council at pre-planning consultation [on the date in question]”, with a third reference accompanied simply by “Changes have been agreed with Cavan County Council at pre-planning consultation [on the date in question]” . Following said commentary in each case are paragraphs with the title“Planning Comments” containing what appear to be the aforementioned changes agreed at each of the consultation meetings and commentary on various matters. It appears to me that these changes and commentary constitute the decisions taken at the pre-consultation meetings and can be said to substitute the minutes that it appears were not taken at the meetings and explain the absence of such formal minutes.
iii. the email of 18 January 2023 does not, as explained above, confirm that pre-planning records in this case do exist;
iv. in regard to the assertion by the appellants that the Senior Planner’s“open and interactive relationship” with the developer, as reported in the Anglo-Celt newspaper in May 2021, connotes the existence of records that have not been released, I am of the view that the several exhaustive searches conducted by the Council can reasonably be considered to have been so thorough as to be capable of achieving the goal of unearthing any such information and that the fact that they have not done so negates any inference that the Council has thwarted its release. I am further of the view that it is not a precondition for the existence of an open and interactive relationship that it be recorded in, or predicated upon, written or other material form.
Part 2 of Request 1 – all compliance submissions/correspondence made by the developer
c. In regard to this part of the request, the Council states that no records exist, adding that the compliance phase for any development commences only after the final grant of permission and that, as this application was at that moment with An Bord Pleanála, the final decision had yet to be made. It went on to say that it could not give a time frame for this decision as it varies with each decision [made by An Bord Pleanála]. In the same vein, in the aforementioned email of 18 January 2023, the Council’s Planning Enforcement Unit, had informed the recipient that“we are not aware of any compliance submissions / correspondence to have been made by the Developer. Conditions to a permission and compliance thereto only comes into effect when permission has been granted. In this case, as the planning authority’s decision [i.e. the Council’s] has been appealed to An Bord Pleanála no permission is in place.” It is appropriate to note in this regard that the planning application appeal relating to the subject matter of these appeals [ref. 313863], submitted on 20 June 2022, was refused by An Bord Pleanála on 4 September 2023.
d. For the reasons given above that explain cogently why information related to this part of the request does not exist, and the Council’s several exhaustive searches for information related thereto, I am satisfied that the Council does not hold any such information.
Part 3 of Request 1 - all information regarding environmental surveys carried out by CCC
e. In regard to this part of the request, which forms the basis of the appeal in respect of Request 2, the Council states that it does not carry out environmental surveys for planning applications received, rather the Council assesses the environmental reports provided by an applicant [for planning permission] and seeks further information when needed in order to make a decision in an application. This being the case, the Council asserts that there are no records pertaining to this part of the request.
f. I accept this explanation and, in view of the several exhaustive searches indicated to have been carried out by the Council to identify information relevant to this part of the request, I am satisfied that the Council does not hold information relevant thereto.
g. In regard to this part of the request, the Council states that, as the application in this case had been appealed to An Bord Pleanála, there was no grant of permission on the site in question and therefore the “conditions attached to grant” by the Council were not applicable. Accordingly, its position is that no records exist relevant to this part of the request.
h. I interpret the Council’s explanation to mean that the conditional permission that had been granted by the Council (i.e. permission subject to conditions) remained in abeyance until such time as An Bord Pleanála made a pronouncement on the appeal before it. To my mind, this makes perfect sense and explains the absence of correspondence on the matter of compliance with any conditions. I deem it appropriate to comment here that in the Planner’s Report of 25 May 2022, which was an extended version of the Planner’s Report of 15 October 2021 and incorporated further information that had been requested of the planning applicant/developer since that first report, thirty-three conditions requiring implementation by said applicant/developer prior to commencement of development are specified as well as details of the monetary development contribution required. Whereas these conditions were contained in a report dated and signed on 25 May 2022, and an appeal against the conditional permission granted by the Council was made to An Bord Pleanála less than one month later on 20 June 2022, I consider that it is not unreasonable to expect the applicant/developer to have taken no action on the development in question, nor to have set about complying with conditions, until the appeal to An Bord Pleanála had been resolved. This, certainly, would explain the absence of any correspondence between the applicant/developer and the Council confirming compliance and conditions met, or otherwise, in relation to this development. In this context, it is not clear to me why the appellants have pursued this particular avenue of enquiry. Accordingly, I accept the explanation given by the Council that no records or information could exist in regard to compliance with conditions attached to a planning permission that had remained in abeyance until the resolution of its appeal to the planning appellate body. Moreover, from the date that An Bord Pleanála refused the planning application in question, the conditional grant of permission ceased to exist.
30. I have given careful consideration to all submissions made by both parties to these two appeals. I acknowledge the grievance expressed by the appellants by, in their view, an apparent lack of availability of information that it deems should exist and be held by the Council. Equally, I have reviewed the detailed reasons given by the Council for its position that all information relevant to the appeals has been provided to the appellants and its reasons why information which the appellants consider should exist and be held by the Council does not exist and is not so held by it. I cannot ignore the detail given by the Council in regard to the several exhaustive searches it has carried out to locate and identify that information, including searches conducted in respect of a third request for information submitted to the Council by the appellants on 12 June 2023, subsequent to its appeal to this Office on 24 May 2023 in respect of Request 1. Equally, I am unable to ignore the Council’s detailed reasons for the non-existence of records alleged to be held by it. Having considered both the Council’s searches and its explanations as to why further information is not held by it, I am of the view that the Council has conducted adequate and thorough searches, has given persuasive reasons why further information is not held by it, and that it has thus complied with the cumulative requirement of articles 7(1) and 7(5) to make available to the requesters any environmental information relevant to Requests 1 and 2 and, in respect of information that is not held by it, to inform the requesters of this fact.
31. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I affirm the Council’s decision in respect of each of the two appeals covered by this decision.
32. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary
On behalf of the Commissioner for Environmental Information