Decision
Mr X and Carlow County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-157030-J7R1Q0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-157030-J7R1Q0
Published on
Whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to a Section 47 agreement relating to a specified planning development on the ground that no such record exists
15 July 2025
This case has its background in a long running dispute between the applicant and the Council concerning a planning development. The applicant’s request was the subject of a previous review by this Office in case OIC-146850-F9Z7D9, as outlined below.
In a request dated 24 November 2023, the applicant sought access to:
a) A copy of the agreement of May 2005 between a named construction company and the Council;
b) A copy of any section 47 agreement relating or attaching to planning permission numbers 06/689 and 07/1148;
c) The value of works actual and estimated covered by the May 2005 agreement and any related section 47 agreement;
d) Details of how development contributions of €6,682.98 each were calculated in respect of house numbers 6 and 7 in the development.
On 28 November 2023, the Council refused the applicant’s request under sections 36(1)(a), (b) and (c) of the FOI Act. The Council subsequently affirmed its original decision following an internal review and on 28 February 2024 the applicant sought a review by this Office of the matter. During the course of our review in case OIC-146850, the applicant informed this Office that he had obtained a copy of the 2005 agreement and was no longer requesting this record. The scope of our review in case OIC-146850 was subsequently confined to whether the Council was justified in refusing access to part (b) of the applicant’s request, i.e. a copy of any section 47 agreement relating or attaching to planning permission numbers 06/689 and 07/1148.
On 23 December 2024, the Investigator in case OIC-146850 found that the Council had not taken all reasonable steps to locate the relevant records. The Investigator annulled the Council’s decision and directed it to consider part (b) of the applicant’s request afresh. The subsequent decision made by the Council following the Investigator’s direction is the subject of this present review.
On 31 January 2025, having received no decision from the Council, the applicant requested an internal review of the matter. On 17 February 2025, the Council refused the applicant’s request for a copy of any Section 47 agreement attaching to either permission 06/689 and 07/1148 under section 15(1)(a) of the FOI Act on the grounds that the requested records do not exist or cannot be found.
On 25 February 2025, the applicant applied to this Office for a review of the Council’s decision. In his application, the applicant appealed the Council’s decision to refuse access to a Section 47 agreement, and all associated amendments and related correspondence. He also provided this Office with a series of emails and noted references by the Council in certain emails to a ‘section 47 agreement’.
During the course of this review, the Investigating Officer provided the applicant with details of the Council’s submissions and its reasons for concluding that there was no Section 47 agreement relating to the planning matters in question. The applicant was invited to make submissions of his own, which he duly did.
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 referred to above and to the submissions made by both parties during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
In his application to this Office, the applicant said he is seeking a copy of the Section 47 agreement with related correspondence, minutes, notes and or amendments. As noted above, our review in case OIC-146850 was limited to part (b) of the applicant’s original request dated 24 November 2023, i.e. for a copy of any Section 47 agreement relating or attaching to planning permission numbers 06/689 and 07/1148. The jurisdiction of this Office is based on the wording of the original FOI request and any subsequent refinement at the internal review stage or during the course of our review. This Office does not have jurisdiction to consider the release of any records that the applicant did not seek in his original request.
Accordingly, this review is solely concerned with whether the Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to any Section 47 agreement attaching to planning permission numbers 06/689 and 07/1148.
As noted above, this case has it background in a long running dispute between the Council and the applicant and/or parties that he represents. It is important to note that the role of this Office is not to determine what records should exist, to adjudicate on how FOI bodies perform their functions generally, nor to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies, or by any other parties. Our role in this case is confined to reviewing the Council’s decision on access to the records sought.
As I understand it, a Section 47 planning agreement permits the Council to enter into an agreement with any person interested in land in their area, for the purpose of restricting or regulating the development or use of the land. The Council’s position is that no section 47 agreement exists for the planning development at issue. However, the applicant disputes the Council’s position and contends that a section 47 planning agreement must exist and provided a copy of an email from the Council dated 21 October 2016 which refers to a section 47 agreement dating back to May 2005.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this 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 their decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
As noted above, details of the Council’s submissions were provided to the applicant. While I do not intend to repeat those details in full here, I confirm I have had regard to them, and to the submissions made by the applicant, for the purpose of this review.
In its initial submissions to this Office, the Council said that searches of both physical and electronic files were undertaken in its Finance, Planning, Roads and Corporate Departments. It said that searches were undertaken manually and electronically using the planning reference, the development address, the developer, etc. When the Investigating Officer asked the Council to provide more details about the searches undertaken, the Acting Director of Services for the Council responded and said that there was never a section 47 agreement in place for the site in question. He said the original developer of the site did enter into an agreement/contract with the Council in 2005 to undertake specific works including the construction of a road, a bridge and services to develop an area of land on the outskirts of Carlow and in the contract the Council undertook to off-set future development levies on an area of land delineated by a map that formed part of the contract. The Council said the developer failed to deliver on the contract and went bankrupt. It said there was a protracted legal case and in October 2021 the Council entered into a settlement agreement with the Official Assignee which was approved by the High Court.
The Investigating Officer forwarded the copies of the emails the applicant had provided with his application for review and asked the Council to explain the references to the existence of a Section 47 agreement. The Council responded by saying that there was no formal Section 47 agreement and reiterated that the agreement which was entered into was superseded by the High Court settlement. It said that the 2005 agreement and subsequent High Court settlement refer to a particular area of land identified by a red boundary land on a map, but a named site developed by a company, who the applicant has acted on behalf of, is not contained within the boundary. The Council stated that there was no Section 47 agreement in place for the lands contained within the 2005 agreement.
The Investigating Officer provided the applicant with details of the Council’s submissions and invited him to provide his own submissions, which he duly did. In his submissions, the applicant provided some background detail to his request, including details of the agreement entered into between the construction company and the Council in 2005. The applicant stated that in order to determine whether the lands comprised in permission 06/0689 and 07/1148 are part of the agreement, he needs to have sight of the maps referred to in the agreement. He said that while he has a copy of the agreement, he did not receive the associated maps. The applicant stated that he cannot be certain of the Council’s assertion that the named site is not included in the agreement without having seen the relevant map.
The applicant also pointed to a series of correspondence from 2009-2013, copies of some of which he provided to this Office during this and the previous review, which he said indicate that there were agreed amendments to the 2005 agreement. Furthermore, the applicant contested the Council’s claim that the 2005 agreement was not classified as a Section 47 agreement. He stated that the reason he mentioned a Section 47 agreement in his original request at all was because it had been referred to as a Section 47 agreement by a senior member of the Council’s staff in an email dated October 2016. Evidence of this was provided by the applicant which showed email correspondence from the Council staff member which refers to a Section 47 agreement.
The Investigating Officer put this to the Council and asked it to explain why the senior member of the Council staff referred to a Section 47 agreement despite the Council’s position being that no Section 47 agreement ever existed. The Council responded to this by saying that the senior staff member did mention a ‘section 47 agreement’ in an email from October 2016, but he should not have referred to the May 2005 agreement as a section 47 agreement as it never was considered to be one.
The Council stated that it looked through files relating to the original proposal to enter into the agreement found no reference to the existence of a separate Section 47 agreement in addition to the May 2005 agreement. The Council said that there is no Section 47 Agreement requirement attached to any of the planning conditions, nor is there any reference within the 2005 Agreement or the High Court settlement to a Section 47 Agreement.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist, or are known to have existed in the past, have not been located. A review by this Office is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of the applicant’s views as to the existence of certain records. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records sought ought to exist.
There is no dispute that an agreement was entered into in May 2005 between the developer and the Council. The Council’s position is that this May 2005 is the only agreement that exists, that this May 2005 agreement was the subject of a subsequent High Court settlement in 2021, and that there was never a section 47 agreement for the site in question. Although the Council did not explicitly deny the existence of a section 47 agreement in the previous case (OIC-146850), it said that there was nothing in the 2005 agreement that pointed to it being a section 47 agreement or to a separate section 47 agreement being in place.
The applicant’s belief that a Section 47 agreement exists is understandable as it seems it was the Council that first referenced this term. However, the Council has subsequently clarified that its previous reference to a Section 47 agreement was erroneous. While I appreciate why the applicant believes that a Section 47 agreement does exist, and I accept there have been some inconsistencies in the Council’s communications around the existence of a Section 47 agreement in the past, including its refusal of the applicant’s original request in November 2023 under section 36 of the FOI Act. Having regard to the submissions before this Office and in the absence of evidence to contradict the Council’s claims, I am satisfied that the Council has provided a reasonable explanation to support its claim that there is no Section 47 agreement relating to the planning permissions at issue in this case.
Having considered the matter carefully, and while appreciate that the applicant will be disappointed by my decision, I am satisfied that the Council has provided a reasonable explanation as to why no Section 47 agreement exists. Accordingly, I find that the Council was justified in refusing access to the Section 47 agreement sought by the applicant under section 15(1)(a) of the FOI Act on the ground that no such agreement exists.
Finally, as noted above the applicant said he is seeking a copy of other records relating to the Section 47 agreement including correspondence, minutes, notes and or amendments of the agreement. He also appears to be seeking maps relating to the agreement/site in question. It is open to the applicant to make a fresh request to the Council for any such records relating to the May 2005 agreement, if he so wishes.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse the applicant’s request, under section 15(1)(a), on the grounds that no Section 47 agreement exists.
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.
Richard Crowley
Investigator