A Report to the Dáil and Seanad in accordance with Section 6(7) of the Ombudsman Act 1980

Public participation in the planning process is an important and valuable element of the planning system. To facilitate the involvement of third parties, planning legislation gives the public the right to inspect and obtain copies of certain types of planning documents. However, the imposition of excessive charges for photocopying such documents can deter members of the public from participating fully. This may not only be unfair to the individuals concerned but it can also undermine public confidence in the openness and transparency of the planning system.

Over the past number of years I have received complaints from members of the public about the level of fees being charged by local authorities/planning authorities for photocopies of extracts from planning files. It has been apparent that there has been inconsistency across local authorities in the amounts being charged for photocopies and I have been concerned that the level of fees being charged by some local authorities appeared to be excessive. Where the procedures for making and processing planning applications is standard throughout the country, it seems to me that charges for copies of planning documents should be relatively uniform across all planning authorities. I highlighted the issue in my first Annual Report in 2003 and have referred to it in most of my subsequent annual reports. As I have continued to receive complaints about excessive charges, I have decided to carry out another review across local authorities and report on my findings.

In accordance with section 6(7) of the Ombudsman Act 1980, I am submitting this Report to each House of the Oireachtas.

Emily O’Reilly
Ombudsman

Legislation

Section 38 of the Planning and Development Act 2000 provides that certain documents relating to planning applications shall be made available for inspection and purchase by members of the public. Section 38 provides:

" Where a planning authority gives its decision in respect of a planning application the following documents shall be made available within three working days for inspection and purchase by members of the public during office hours at the offices of the authority:

(a) a copy of the planning application and of any particulars, evidence, environmental impact statement, other written study or further information received or obtained by the authority from the applicant in accordance with regulations under this Act;

(b) a copy of any submissions or observations in relation to the planning application which have been received by the authority; 

(c) a copy of any report prepared by or for the authority in relation to the planning application; 

(d) a copy of the decision of the authority in respect of the planning application and a copy of the notification of the decision given to the applicant; and

(e) a copy of any documents relating to a contribution or other matter referred to in section 34(5)."

The Act provides that the documents be made available for inspection for a period of not less than seven years. The Act also provides that the documentation listed at (a) and (b) i.e. the planning application and associated documents and submissions in relation to the application, shall be made available for inspection and purchase from as soon as may be, after they have been received by the planning authority. The Act does not prescribe fees for copying the relevant documents and the only reference in the Act to the fee to be charged for such a service is contained in section 38(4) which states:

"(4) Copies of the documents under this section shall be made available for purchase on payment of a specified fee not exceeding the reasonable cost of making such a copy."

This Report focuses in essence on the manner in which local authorities have interpreted the phrase 'reasonable cost' in determining the fees to be charged.

Inconsistency in Charges

Members of the public have continued to complain to me about the excessive fees being charged by some local authorities for copying planning documents, and in examining the complaints it became apparent that there was no consistency in the level of fees being charged by local authorities.

In my Annual Report in 2004, I gave an account of a survey carried out by my Office of 30 local authorities in order to establish the fees being charged. This survey showed that the definition of "reasonable cost" varied quite a lot from one local authority to another, with fees ranging from 10c to €1 per A4 page and some imposing minimum charges of between €1 and €3. A check with suppliers of commercial photocopying services at that time established that the charge for a copy of an A4 size document ranged from 10c to 15c per copy.  The charges imposed by local authorities, when contrasted with charges for copies of records obtained under the Freedom of Information Act 1997, is also noteworthy. Regulations made by the Minister of Finance under section 47 of the Freedom of Information Act 1997 provided, at that time, for maximum charges of 4c per photocopy sheet, 51c per 3½" diskette and €10.16 per CD-ROM.  

Role of the Department of the Environment, Heritage & Local Government

In February 2004, my Office wrote to the Department of the Environment, Heritage & Local Government (the Department) regarding the matter of the charges being levied by local authorities. It was pointed out that dealing "fairly with people" means "treating people in similar circumstances in like manner". In the matter of charges for documents on planning files, I took the view that, where appropriate, charges for similar public services across all relevant public bodies, including local authorities, should be relatively uniform. Given the lack of uniformity in relation to the charges being levied by local authorities for copies of documents on planning files, the Department was requested to carry out a review of the charges being imposed and to consider providing clearer guidelines on the calculation of charges in an effort to ensure uniformity of treatment across all local authorities.

My Office drew the Department's attention to the regulations made by the Minister for Finance under the Freedom of Information Act which specify, inter alia, that, in relation to a photocopy of material provided to a member of the public in response to a request under the Freedom of Information Act 1997, an amount of £0.03p (0.4c) should be the rate charged per sheet. It was also pointed out that, as planning documents would normally be available for inspection in the planning office, the time spent on sourcing and retrieval should, in most cases, be minimal and, therefore, the inclusion of staff time for this activity in the calculation of the fees to be charged, would not appear to be reasonable.

The Department undertook its own survey of photocopying charges in planning authorities and the results showed a wide variation in charges. This prompted the Department to issue guidelines on the matter to all planning authorities in August 2005 (Circular Letter PD 4/05 Appendix A). This circular, while not prescriptive in terms of the actual charges to be applied, provides guidance in relation to the interpretation of what constitutes the 'reasonable cost' of making a copy. The Department indicated that it considered that the 'reasonable cost' of making a copy would comprise no more than the cost of the paper and the running cost of the copying machine such as toner, electricity and servicing and the cost of staff time spent in actually photocopying. In addition, the circular requested that planning authorities review their charging policy in light of the Department's advice.

Compliance with Circular Letter PD 4/05

As reported in my Annual Report for 2005, subsequent to the issuing of the Department's Circular Letter in August 2005, my Office carried out a further telephone survey of 30 local authorities in order to establish whether they had revised their charges in light of the guidelines. This survey showed that some local authorities had reduced their fees, others decided that the fees being charged by them were reasonable and made no amendments, and some appeared to be unaware of the Department's guidelines. Significant inconsistencies remained in relation to the level of charges being levied and I continued to receive complaints on the matter. Having indicated in my Annual Report for 2005 my intention to revisit the matter, I decided to do so in 2007.

Circular Letter PD 4/05 issued by the Department in 2005 indicated that the 'reasonable cost' of making a copy would comprise no more than the cost of the paper, the running cost of the copying machine such as toner, electricity and servicing and the cost of staff time spent in actually photocopying. This means that the time spent by staff retrieving and re-filing planning files and separating and re-assembling planning files in order to photocopy planning documents ought not be taken into account when calculating the reasonable cost. 

A check with three commercial suppliers of photocopying services in Dublin was carried out and revealed that the highest cost for photocopying an A4 page (black & white) was 16 cents - an increase of 1 cent since 2004. Two other companies quoted 5 and 7 cents per page. In order to make a profit, it is clear that commercial companies take into account the running cost of the copying machine such as toner, electricity, servicing and staff time in making a photocopy, when determining the appropriate charge.

Having regard to the Department's guidance in Circular PD 4/05, i.e. that the reasonable cost of making a copy should include only the cost of actually making the copy and should not include the cost of searching for, or retrieving the document in question, it is very difficult to see how charges significantly in excess of the charges levied by commercial companies could be justified.

It is not for my Office to decide what the appropriate charge should be. However, the following example of a complaint that I received against Mayo County Council illustrates the approach that I will take to determining whether local authorities are complying with section 38(4) of the Planning & Development Act 2000 and setting charges which do not exceed the reasonable cost of making copies of the relevant documents.

In 2005, following receipt of a complaint that Mayo County Council was charging €1 per page for copies of planning documents, my Office carried out a forensic evaluation of the charges being levied. The Council said that, in order to determine what the "reasonable cost" of photocopying should be, it analysed the actual cost of producing an A4 photocopy. In summary, the Council calculated its costs for the provision of one A4 photocopy sheet as follows:

1. Time:

(i) File retrieval 5 minutes
(ii) File separation     5 minutes
(iii) Photocopy           10 minutes
(iv) File re-assembly  5 minutes
(v) Re-filing                5 minutes
Total time                  30 minutes

The cost for this element, based on a Clerical Officer salary, was estimated at €5.82.

2. Equipment €0.007

3. Paper €0.007

The total actual cost estimated by the Council for producing one A4 photocopy was  €5.834.

The Council concluded that the economic cost was not a "reasonable cost" and, accordingly, it said it set the fee at a similar level to adjoining local authorities.  In this context, it maintained that the photocopying charge, at €1 per A4 sheet, was reasonable and could not be regarded as excessive.

I did not agree. I concluded, by reference to section 38(1) of the Planning & Development Act 2000, that the cost of file retrieval and re-filing, at 5 minutes each, was not chargeable. In addition, by reference to the Department's Circular, I concluded that the cost for file separation and file re-assembly, at 5 minutes each, was also not chargeable. I had no major difficulty with the Council's cost calculations for equipment and paper usage.

I was particularly concerned that, based on the Council's own estimation of 30 minutes to photocopy an A4 sheet, it was trying to convince me that an employee in Mayo County Council's service could only photocopy 14 pages in a full day - based on a 7-hour day i.e. 30 minutes x 14 photocopies = 7 hours.

Accordingly, I asked the Council to review its charges. In response the Council carried out a review of its photocopying charges and agreed to reduce its charges to €0.10 per A4 sheet, a reduction of 90% on the earlier charge.

Two main concerns arise from the survey and these are:

1. The inconsistency and spread of charges across local authorities.
2. The excessive charges levied by a large number of local authorities, despite the guidance issued by the Department of the Environment, Heritage and Local Government in August 2005.

The survey results for 2007 would indicate that the Department's Circular Letter PD 4/05 of August 2005 has had little or no impact on the level of charges for photocopying planning documents across the local authorities surveyed, as the following table illustrates:

Response of Local authorities	Comparative percentages
Increased or made no change to charges of 25 cents and over per A4 page	53%
Reduced charges but still exceed 25 cents per A4 page	7%
Reduced charges to less than 25 cent per A4 page	10%
Retained charges at less than 25 cent per A4 page	30%

 

Based on the survey results, the above figures indicate that 60% of all local authorities may be levying charges for photocopying planning documents above a level that I consider would be difficult to justify.

I call on those local authorities who are overcharging to now review their charges, by reference to the Circular issued by the Department in August 2005 and revise their charges, as others have done. Should this not happen, I may have no option but to investigate the matter further. While I appreciate the independence and autonomy of individual local authorities, I have to take into account that the planning process is a national one, where procedures are generally uniform across all local authorities. In passing, I should also mention that the Freedom of Information Acts 1997 to 2003, apply nationally across all local authorities and other public bodies and, as already stated, provide, by Regulation, for a standard photocopying charge. Given that the national planning process, by law, requires that planning files be made available to the public for a given period, there would not appear to be a justifiable reason for imposing charges greater than the cost of making a copy of planning documents. Should I find it necessary in the future to investigate charges for photocopying planning documents in a particular local authority as a test case, and should I find that its charges cannot be justified, I will be most critical of that local authority, not only for its overcharging but also for its failure to take on board the Department's Circular Letter PD 4/05 and the evidence and comments contained in this Report.

Circular Letter PD 4/05

Charges for Photocopies of Planning documents

A Chara,

The Ombudsman has raised with this Department her concern regarding the level of fees being charged by planning authorities for photocopies of documents relating to planning applications.

On the basis of a survey carried out, the Department has determined that there is a large variation in practices in planning authorities as regards the method of calculation of charges for photocopies of planning documents.

Section 38(4) of the Planning and Development Act, 2000 allows the charging of a fee "not exceeding the reasonable cost of making a copy". While this Department is not in a position to give a legal interpretation of the Act, it is our view that the reasonable cost of making a copy should include only the cost of actually making the copy and should not include the cost  of  searching  for and retrieving the document in question.  As the legislation envisages that documentation must be made available for inspection free of charge, it is reasonable to assume that the words  "the reasonable cost of making a copy" refer only to the cost of making the copy. Accordingly we consider that a reasonable charge would comprise no more than the cost of the paper and the costs of the copying machine such as toner, electricity, servicing and the cost of staff time spent in actually photocopying. It also follows from this that the charging of a minimum charge of e.g. €2-€5 for one page is not reasonable if this charge exceeds the actual cost of making the copy.

I would ask that planning authorities review their charging policy for copies  of planning documents in the light of the foregoing.

Mise, le meas

Marian O'Driscoll
Assistant Principal,
Planning Section

To: Directors of Planning Services, County and City Councils; Town Clerks