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Annual Report of the Ombudsman 1994

Chapter Five - Investigations

Department of Agriculture, Food and Forestry

Refusal to pay a grant under the Ewe Premium scheme

I received a complaint from a woman who claimed that the Department of Agriculture, Food and Forestry had refused to pay grants under the Ewe Premium Scheme in 1991, as the application was not received by the Department before the closing date. She said that she was late in submitting the application form because the Department had not forwarded an application form to her in 1991, as they had done in other years.

Background

The complainant, jointly with her brother and sister, inherited the farm from her father. None of them was actively involved in farming and all lived away from the farm. The day-to-day running of the farm was looked after by a farm manager.

Prior to his death in 1988, the Department automatically forwarded an application form each year to her father. This was a service that the Department provided to all farmers. An application form issued automatically again in 1989 in the name of her father and the complainant used this to apply for the premiums in respect of 1989.

When completing this form, the complainant indicated on it that her father was now deceased. This had the effect of initiating a procedure within the Department to have the registered ownership of the herd changed into the joint names of the complainant, her brother and sister. Payment of the 1989 premiums was withheld pending the submission of proof of change of ownership of the land.

An application form did not issue automatically for the 1990 premiums but the complainant obtained one and submitted it on time. Payment of those premiums was also withheld, pending receipt of proof of change of ownership.

The necessary legal proof was submitted in early 1990 and, on 19 April 1990, the Department wrote to the three beneficiaries, care of the complainant's address, informing them that the Department's records were amended to show that the three of them were now registered as the herd owners.

The complainant assumed that this meant that application forms would now issue automatically to her address as they had issued previously to her father. However, in early 1991 the Department issued forms, automatically, under the 1991 Ewe Premium Scheme to other farmers and set 15 March 1991 as the closing date for the return of completed forms. She did not receive a form and only discovered some days after the closing date that forms had issued. She obtained a form from the local office and lodged it on 20 March 1991.

The Department refused to pay the premiums as the form was received after the closing date.

Preliminary examination In their report to me, the Department said that, in 1990, the complainant asked that the payable orders for grants be issued to her only as the sole payee, for her to distribute among the three persons involved. In order to do this, they said that it was necessary to pay the 1990 Ewe Premium payments manually to the complainant as the computer could only issue payments to the registered owners, i.e. the three persons in question. Because the 1990 payments issued manually, the computer, when issuing application forms for 1991, did not issue one to the complainant.

As far as the Department was concerned, it was because of her request that the 1990 payments be made to her alone, and the Department's efforts to facilitate her, that the application form for 1991 did not issue to her. In any event, they issued application forms to farmers only as a convenience to them and the onus was on each individual farmer to ensure that he had a form and that he submitted it before the closing date.

I was not satisfied with the Department's reasons for not paying the 1991 premiums. It was not apparent from the file that the manual payment of the 1990 premiums resulted from a request by the complainant to be made the sole payee, as had been suggested by the Department. There was no clear indication as to why there had been a long delay - until June 1991 - in the payment of the 1988, 1989 and 1990 premiums. It seemed that if there had not been such a delay, the 1990 premiums could have issued by computer and the 1991 application form would then have been issued automatically.

As there was prima facie evidence of maladministration, I decided to initiate an investigation of the complaint.

Investigation

In the course of the investigation interviews with the local Department staff, it became clear that, contrary to what I had previously been told by the Department, the suggestion that the complainant become the sole payee of the ewe premiums had come from the Department and not from the complainant.

When this was pointed out in a subsequent interview with a senior staff member of the Department, he accepted that, if that was the case, it was incorrect to have held the complainant responsible for the non-issue of the application form and the resulting problems. He said that it seemed, therefore, that the 1990 premiums could have been paid by computer from April 1990 onwards. If this had happened, the 1991 application form would have issued automatically to the complainant and she would most likely have submitted it before the closing date.

He accepted that the fault in this case lay with the Department and he undertook to seek the sanction of the Department of Finance for payment of the 1991 premiums to the complainant. This sanction was duly given and the premiums were paid. I therefore discontinued the investigation.

Local Authority

Access to Information on the Environment

I received a complaint from an environmental group relating to the refusal of a Local Authority to provide them with the daily monitoring results on the water supply of a small town. The results are prepared by the Local Authority's Curator at the local water treatment plant. The group claimed that the information should have been made available to them under the Access to Information on the Environment Regulations.

Background to the complaint

On 25 January 1994, the group wrote to the Local Authority seeking information on the monitoring results of the water supply. The Local Authority provided some of the information requested, but refused to provide the results of daily monitoring carried out at the water treatment plant by the Curator. The environmental group considered that, since the quantity of chemicals added to the water each day was decided on the basis of the daily monitoring, the information should be available for public scrutiny under the Access to Information on the Environment Regulations. They complained to me about the refusal to release the information.

Legal background

E.U. Directive 90/313/EEC on Freedom of Access to Information on the Environment provides that, with effect from 31 December 1992, and subject to certain exceptions, information relating to the environment held by a public authority must be made available on request to any person.

Section 110 of the Environmental Protection Agency Act, 1992 provided that regulations be made by the Minister for the Environment for the making available by public authorities of information relating to the environment.

The Access to Information on the Environment Regulations, 1993 (S.I. No. 133 of 1993), came into effect on 20 May 1993, but the Department of the Environment requested local authorities to apply the provisions of the Regulations to all requests for information relating to the environment made after 31 December 1992.

Article 4 of Directive 90/313/EEC provides that a person who considers that his request for information has been unreasonably refused or ignored, or has been inadequately answered by a public authority, may seek a judicial or administrative review of the decision in accordance with the relevant national legal system. For the purpose of the Regulations, the applicant is entitled to ask the Ombudsman to examine the decision of the public body provided that body is within the remit of the Ombudsman.

Section 110 of the Environmental Protection Agency Act 1992, defines "information relating to the environment" as:

"any available information in written, visual, aural or database form on the state of water, air, soil, fauna, flora, land and natural sites and on actions (including those which give rise to nuisances such as noise) or measures adversely affecting, or likely to so affect, these and on actions or measures designed to protect these, including administrative measures and environmental management programmes".

The European Communities (Quality of Water Intended for Human Consumption) Regulations, 1988 define "water intended for human consumption" as all water for that purpose, either in its original state or after treatment, regardless of origin. The Regulations also lay down the frequency of sampling and analysis of drinking water. There are four monitoring categories, C1 to C4. The extent to which sampling and analysis under C1 to C3 are carried out increases with the magnitude of the population served by the respective supplies. C3 monitoring contains similar information to that contained in the daily report sheets. The population size of the town in question determines that C3 monitoring need only be carried out once each year. C4 refers to occasional monitoring in special situations, e.g. in the event of accidents.

Article 4(1) of the Access to Information on the Environment Regulations, 1993 provides that a public authority shall make available any information relating to the environment to which these Regulations apply, to any person who requests it.

Article 6(1)(d) provides, among other things, that a public authority may refuse to make available information, where the information requested relates to internal communications of the public authority.

Article 6(2) provides that a public authority may refuse to make available information where the request is manifestly unreasonable.

Article 7 provides that nothing in article 6(1) shall authorise a public authority not to make available, or to refuse to make available, information which, although held with information to which article 6(1) relates, may be separated from this latter information.

Guidance Notes prepared by the Department of the Environment indicate that "internal communications of a public authority" would include internal minutes, reports or other communications between officials or different public authorities, or between officials and Ministers, letters to and from members of the public and public representatives, etc.

Preliminary examination

In reply to my request for a report on the complaint, the Local Authority stated that they were not obliged to make available the results of their drinking water analysis for the following reasons:

1. Drinking water analysis is not included in the definition of "information relating to the environment" contained in Directive 90/313/EEC on the matter and if it was meant to be included, it would have been specified.
2. Article 6(1)(d) of the Irish Regulations on Access to Information on the Environment makes provision for refusal of information "where the information requested relates to internal communications". The Curator's daily report sheets are internal communications between the Curator and his Area Engineer.
3. Article 6(2) of the Regulations provides that a public authority may refuse to make information available "where the request is manifestly unreasonable or is formulated in too general a manner". It is unreasonable that the Local Authority should be expected to make available the daily report sheets from each Curator in the Local Authority's 150 water treatment plants.

In the course of discussions on the matter with a number of officials of the Local Authority, the above points were reiterated. Concern was raised as to the use which the environmental group would make of the information, if it was provided to them. A copy of a leaflet which the group had circulated in the area was supplied. This showed that the group was raising serious questions about the possible effects which the chemicals could have on people's health. This was alarmist in the Local Authority's view.

I was not satisfied with the Local Authority's reasons for refusing to make available the information requested in this case. I considered that there was prima facie evidence of maladministration and, accordingly, I decided to initiate an investigation of the case as provided in Section 4 of the Ombudsman Act, 1980.

Investigation

In the course of the investigation the Local Authority made the following points:

(a) The Local Authority had no difficulty, in principle, in making information on the environment available to members of the public. The Local Authority was in the process of setting up an Environmental Forum with a view to dealing, in a constructive way, with the ongoing controversy in relation to air quality in the area in question. This was an indication of the goodwill and determination of the Local Authority to take seriously their role in protecting the environment.

(b) Despite this, environmental groups continued to misrepresent the Local Authority at every opportunity. In answer to a question recently, the Local Authority had admitted freely that there had been 1974 exceedances of limits relating to emissions to the air. While half of these were double the allowable limit, it represented only 0.4% of all measurements taken and was within the management regime imposed on the industry by the Local Authority. None of the exceedances were such as would warrant prosecution. This figure was now bandied about by environmental groups at every opportunity in an attempt to show that the Local Authority could not be trusted in the matter of monitoring the environment. Once information was used in this way, it was impossible for the Local Authority to retrieve the situation.

(c) The Local Authority would have no objection to handing over, to a responsible body for scientific analysis, the daily report sheets which were the subject of the present complaint.

d) The Local Authority feared that the information on the daily report sheets would be used to cause alarm within the area in question in relation to the potential side effects of the chemicals used in the treatment of the water. For example, there was an ongoing debate in scientific literature about the potential of chlorine, which, when added to water supplies, had the potential to react and form compounds which, in laboratory tests, had been shown to have carcinogenic effects on animals.

(e) The information on the daily report sheets was not information on the environment as defined by Section 110 of the Environmental Protection Agency Act, 1992. The information on the sheets refers to the state of the treated water. The legislation is meant to relate to water in its untreated or natural state and therefore the Regulations do not apply in this case.

(f) The Local Authority make available to the public information on the state of drinking water in accordance with their obligations under the European Communities (Quality of Water Intended for Human Consumption) Regulations, 1988. This information is the result of scientific analysis carried out by the local laboratory and the Local Authority can accordingly stand over it.

(g) They said that the Local Authority were offering to carry out more frequent C3 testing, under the Drinking Water Regulations, of the water supply in the area in question as a way of meeting the complaint as made to the Ombudsman and, in turn, the request for information by the environmental group.

(h) The information on the daily report sheets is not scientifically measured. While not inaccurate, it is only a crude measurement of the concentration of chemicals in the water. Its primary purpose is to alert the Engineer to any problems that may arise in relation to the amount of chemicals added to the water. The report sheets are also used for management control and chemical stock control purposes.

(i) The daily report sheets are "internal communications" for the purpose of Article 6(1)(b) of the Regulations and, accordingly, the Local Authority may refuse to release them. Articles 6(2) and 7 did not therefore appear to be relevant.

(j) Reports prepared by junior staff would normally contain personal views and opinions on a subject and, accordingly, would be "internal communications". Documents that would not be regarded as "internal communications" would be reports prepared by relatively senior Local Authority personnel which would normally be based on factual information and would indicate the corporate view on the matter under discussion in the report. If it does not reflect the corporate view, then it remains an internal communication.

(k) They accepted that with the exception of the comments column, all of the information on the daily report sheets was factual information on the quantities of chemicals added to quantities of water.

(l) The comments written on the daily report sheets by the Curator contained very useful information for the Engineer. If the sheets were made public, the Curators would be reluctant to commit their views to writing in the future and a valuable source of information may be lost.

(m) They accepted that, if the information was otherwise appropriate for release, the comments part of the sheets could be excluded. They expressed concern, however, that if the comments were excluded, and were known to the public to have been excluded, the public could become suspicious that the Local Authority had something to hide.

(n) The main reason for the Local Authority's refusal to release the daily report sheets was the alarmist use to which they feared the information would be put.

Findings

Having considered in detail all the evidence available to me, I found as follows:

1. I found that the information contained in the Curator's daily report sheets was information relating to the environment within the meaning of the definition pertaining to the Access to Information on the Environment Regulations.
2. I found that, subject to 3 below, the Curator's daily report sheets were not "internal communications" for the purposes of Article 6(1)(d) of the Regulations.
3. I found that the comments on the margin of the daily report sheets were internal communications and may be blocked out before the sheets are released as provided for in Article 7 of the Regulations.
4. I found that, even if the daily report sheets were "internal communications", it was not reasonable for the Local Authority to exercise its discretion to refuse to make the sheets available to the environmental group as the reasons advanced by the Local Authority in support of this position at paragraphs (d), (g), (h) and (n) above were not valid reasons under the Regulations.

Recommendation

I recommended that the Local Authority make available to the environmental group, the information which they requested in relation to the condition of the drinking water, namely copies of the Curator's daily report sheets, excluding the comments on the margins of those sheets.

The Local Authority accepted my recommendation.

Planning administration

I received a complaint against a Local Authority from two families concerning the manner in which the authority had dealt with a planning application for a development near their homes. The complainants alleged that the Local Authority had denied them their statutory right of appeal to An Bord Pleanála against a decision of the Authority on the planning application.

Background

On 6 July 1989, the Local Authority received an application for planning permission for the erection of a dwelling house on a site adjacent to the homes of the complainants. Following consideration of the application, the Local Authority decided to defer a decision on the application, pending receipt of additional information. The applicant was informed accordingly, and the additional information was requested, by registered letter dated 31 August 1989. The application would receive no further consideration until the additional information was received.

In January/February 1991, the Local Authority arranged to have all planning applications received in 1989 miccrofilmed. This was part of a regular procedure to free up storage space for new planning application files.

On 28 July 1991, one of the complainants (Family A) wrote to the Local Authority in relation to the application. They were informed, by letter dated 1 August 1991, that no decision had been made on the application; that a request for further information had been made to the applicant on 31 August 1989; that no reply had been received and that they would be notified of any revised proposal submitted.

On 20 December 1991, the further information was submitted by the applicant. The Local Authority did not inform Family A.

On 21 January 1992, the Local Authority wrote to the applicant advising him to re-advertise the application, due to the period of time that had elapsed since the application was originally submitted. The applicant duly complied and placed an advertisement in a local paper on 1 February 1992. The advertisement read as follows : "(Name of County) : Planning permission sought from (name of Local Authority) for the erection of a dwelling at ..(address given)". This advertisement was seen by the second complainant, Family B.

During February and March 1992 Family B said that they phoned the Local Authority's Planning Department on at least four occasions (they produced copies of their itemised telephone bills to prove this). They visited the Local Authority Office at least once and visited the Planning Department on at least three occasions, looking for information on a planning application in respect of the site. On each occasion, they were informed that no planning application had been lodged. Family A said that they also visited the Planning Department at the end of March 1992.

On 8 April 1992, the Local Authority decided to grant planning permission to the applicant. As no appeal had been lodged, the grant of planning permission was conveyed on 11 May 1992.

In their approach to my Office, the complainants sought to have the decision to grant planning permission rescinded on the grounds that the Local Authority had denied them their statutory right of appeal to An Bord Pleanála. I indicated from the outset that I had no power to seek to question the Local Authority's decision to grant planning permission. I outlined, however, my intention to examine the Local Authority's role in relation to the two complainants.

Legal background

Article 32(2) of the Local Government (Planning and Development) Regulations, 1977 as amended, provides as follows:

"Where any person or body.... has submitted submissions or observations in writing to a planning authority in relation to a planning application, the planning authority shall, within seven days of making a decision on the application, notify such person or body of the said decision or publish notice thereof in a newspaper circulating in the district."

If the letter from Family A to the Local Authority, dated 28 July 1991, could be regarded as a "submission" or "observation", the Authority was statutorily obliged to notify Family A of the decision of 8 April 1992, within seven days of the making of the decision. The Local Authority did not issue such notification.

Preliminary examination

In response to my request for a report on the complaint, the Local Authority made the following points:

a) There was no record of any correspondence having been submitted by Family B in relation to the application and without a written objection the Local Authority would not be in a position to notify them of any decision on the application.

b) Nobody in the Local Authority (planners or clerical staff) could recall meeting either of the families prior to the making of the decision on the application.

c) The application was clearly marked on the Local Authority's Ordnance Survey Sheets for the area when originally registered and a visit to the office to view the site of the application would have easily elicited this information.

d) While at the counter (after the decision was made), the complainants were visibly confused by the maps and it was quite probable that, if they did call on other occasions, they inspected the wrong sites or maps.

Investigation

As I was not satisfied with the Local Authority's response to the complaint, and as there was prima facie evidence of maladministration, I notified the Authority of my intention to investigate the case.

In the course of interviews with a number of Local Authority staff, each of them stated that they had no recollection of dealing with either of the complainants before the decision on the application was made on 8 April 1992. They were adamant that, if an enquirer identified a site, they would be able to inform him or her, with certainty, whether or not a planning application had been lodged in respect of that site. They were unclear, therefore, as to how Family B could state that they had been informed that there was no planning application in respect of the site in question. The Local Authority staff showed my officials where the reference number of the planning application had been written on the map in pencil and although it was subsequently rubbed out when the decision was made, the original mark was still visible. Accordingly, if Family B had identified the correct site on the map, they would have been informed that a planning application was on hand.

The only possible explanation the Local Authority staff could offer in this regard was that Family B might have been expecting a new planning application in view of the advertisement that they saw in the local paper on 1 February 1992. If they had asked whether a planning application had been lodged in respect of the site in 1992, they might very well have been informed that no such application had been lodged. The Local Authority staff acknowledged that the advertisement could have been misleading in that respect in that it appeared to suggest that an application was about to be lodged when in fact it was originally lodged in 1989. The Local Authority have since taken steps to ensure that in future such advertisements will carry the original reference number to avoid any confusion.

The Local Authority staff were unable to explain why Family A were not notified as promised, when the additional information was received. From my investigation, however, it seemed to have been related to the microfilming of the 1989 planning files.

The Local Authority planners said that they were satisfied that, while they would have taken any objections into consideration, they were unlikely to have been influenced in their decision by the objections which the complainants had mentioned in their contacts with my Office, i.e. that their views to the sea nearby would be blocked, that the proposed house would intrude on their privacy and that the development might encroach on the right of way which runs between their site and the site to be developed. The principle of permitting the construction of a dwelling house on this site was first established by an outline permission granted by the Local Authority in 1974 for the erection of a dwelling house. This principle was confirmed by An Bord Pleanála who decided to grant permission, on appeal, for the erection of a house on the site in 1983. The planners said that when the current application was being examined in August 1989 the only problem that existed was a technical one relating to percolation. They added that objections on the grounds of preserving a scenic view would not have been deemed valid as nobody was entitled to have such a view preserved.

Findings

1. I found that the Local Authority failed to notify Family A of the receipt of the additional information in December 1991, as they had undertaken to do.
2. I found that Family A's letter of 28 July 1991 was a "submission" or "observation" within the meaning of Article 32(2) of the Local Government (Planning and Development) Regulations, 1977 as amended. I also found that the Local Authority failed to notify Family A of the making of the decision in the case within 7 days of the making of the decision on 8 April 1992, as they were statutorily obliged to do.
3. I found that both actions resulted directly from the failure of the Local Authority staff to associate the letter of 28 July 1991, from Family A and the reply thereto dated 1 August 1991, with the planning file.
4. I found that the advertisement in the local newspaper dated 1 February 1992, which was seen by Family B was likely to mislead members of the public who saw it, and possibly the Authority's staff, into believing that a new application for planning permission was about to be lodged. I noted, however, the Authority's statement that they now require such advertisements to include a reference to the original application.
5. I did not find any evidence, from Local Authority records or interviews, to suggest that the Planning Department staff informed Family A or Family B in the period February/March 1992 that no planning application at all had been lodged in respect of the site in question.

Recommendation

I recommended that:

(i) the Local Authority review the administration of planning applications including all aspects of their procedures for communicating with third parties, with a view to preventing a recurrence of the circumstances of this case which led to the complainants' loss of opportunity to exercise their statutory right to appeal the Authority's decision to An Bord Pleanála and

(ii) a sum of £500 be paid to Family A and £500 to Family B as a recognition of their loss of rights and to compensate them for the time and effort spent trying, in vain, to gather from the Authority the information, relating to the planning application, which they needed in order to exercise their statutory rights.

The Local Authority accepted my recommendations. However, the complainants, while expressing their appreciation for the work done on the investigation and my findings in their favour, refused the £500 compensation recommended and decided instead to seek legal advice with a view to initiating legal proceedings to have the planning permission reversed.

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