Whether the Council was justified in its decision to refuse the applicant's request under section 10 for a statement of reasons for the change of zoning on property owned by his company on the ground that he is not entitled to the statements of reasons sought

19 June 2019

Background

This case arises from a change of zoning of a site owned by a company of which the applicant is a director. Following an earlier exchange of correspondence, he submitted a request for certain records relating to the site and he also applied for a statement of reasons for the change of zoning of the site from “Town Centre” to “Community and Educational" and for the decision to locate adjacent intended roadway upgrading at the site. As per the application for review submitted to this Office, this review is concerned solely with the application for a statement of reasons for the change of zoning.

On 6 July 2018 the Council refused the application for a statement of reasons on the ground that the applicant does not have a material interest in a matter affected by the act as required under section 10. On 10 July 2018 the applicant sought a review of that decision following which the Council affirmed its original decision. 

The applicant sought a review by this Office of the Council's decision on 15 August 2018. Both the applicant and the Council made submissions in the course of this review. I have decided to conclude the review by way of a formal binding decision. In conducting the review, I have had regard to the correspondence between the applicant and the Council as outlined above. I have also had regard to the correspondence between this Office and both the applicant and the Council on the matter.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse to provide the applicant with a statement of reasons for the change of zoning of a site owned by his company on the ground that he is not entitled to the statements of reasons sought.

Analysis and Findings

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 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. For the purposes of section 10, an act of the body includes a decision of the body.

Subsection (5) of section 10 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."

Under subsection (13), benefit is defined as including any advantage to the person, or the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person.

This Office considers 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, i.e. the applicant bears the burden of showing that he or she has been affected by the act in question and also has a material interest in the matter. 

In its submission to this Office, the Council made detailed arguments as to why it considers the applicant did not have a material interest in a matter affected by the act for which the statement of reasons was sought, namely the rezoning of the site in question. However, it also argued that he was not, in fact, affected by the act. It stated that at the time of the act in question, the applicant’s company was not the owner of the site and that he was not, therefore, affected by the act.

In response, the applicant accepts that his company was not the owner of the site at the time of the decision to rezone the site. He argued, however, that the Council did not restrict the material effect of such a decision on the then owner alone but took the decision knowing that it would have an equal effect on all subsequent owners of the site. He argued that the material effect of the decision is the dominant criteria in determining the right to be given reasons and that there is no explicit legislative criteria stating that the person or entity immediately materially affected by such a decision alone has a right to be provided with reasons for such a decision.

I do not accept that the material effect of the decision is the dominant criterion in determining the right to be given reasons. Rather, it is one of the criteria required. Another is that the person seeking the statement of reasons must be affected by the act. It seems to me that when the rezoning decision was made, only the then owner of the site could have been affected by that decision. Any future purchaser would be purchasing the site based on the zoning status as it existed at the time of purchase. 

According to the applicant, the Council's contention that a criterion exists for whether a party is immediately affected by a decision is further undermined by this Office's recognition that a decision or act can have a continuing effect as described in Case 98095. He argued that the act of the Council in this case has a continuing effect on his company beyond that of the immediate entity affected at the time the decision was taken.

In Case 98095, the question of whether an act of a public body has continuing effect arose in the context of a consideration of whether the section requiring the giving of statements of reasons applies retrospectively to decisions taken before the commencement of the FOI legislation. In that case, the then Commissioner found that the relevant section of the Freedom of the FOI Act 1997 (the equivalent of section 10 of the FOI Act 2014) cannot apply retrospectively. He added, however, that he might have taken a different view were the act in question to have continuing effect.

This Office considers that the types of decisions which could have continuing effect would mainly involve the withdrawal or refusal of a material benefit and are decisions which are capable of alteration or reversal at any point during the period in which the decision continues in effect. However, the fact that a decision may have ongoing consequences does not mean that it has continuing effect.

The act in this case, being the decision to rezone the site, cannot be altered or reversed. While it is, of course, possible that new decisions may be taken in the future in the course of making future development plans, I do not accept that this means that the decision at issue has continuing effect. In any event, the then Commissioner's consideration of whether a decision had continuing effect in Case 98095 was in the context of its effect on the person who was affected by the act at issue. As I have outlined above, I do not accept that the applicant in this case was affected by the act for which the statement of reasons has been sought.

In conclusion, therefore, I find that the applicant has not been affected by the act of the rezoning of the site at issue and that he is not, therefore, entitled to a statement of reasons for that act.

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 to refuse to provide the applicant with a statement of reasons for the change of zoning of a site owned by his company on the ground that he is not entitled to the statements 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