Request for access to building plans submitted for resource consent
Request for access to building plans submitted for resource consent—plans marked ‘confidential’—plans amended—request declined for copyright and security reasons—public interest in effective participation in process—Building Act 1991, ss 27(1), 27(3)
A project for constructing a building with public display space, associated small shop and conveniences for visitors, together with residential accommodation for the operator, required resource consent. The application drew objections, but consent was granted on condition that ‘the facility be established and operated generally in accordance with the plans and details submitted’ and subject to a number of other conditions. With minor amendments to some of those other conditions, the consent was confirmed on appeal. The original plans and details submitted disclosed a somewhat unusual building in a particular shape and style.
With construction underway, an objector requested access to the building consent plans. It seems he held concerns that the District Council may have approved, for construction purposes, plans which differed in material ways from those which had been approved at the resource consent stage. The developer had marked his application for building consent as confidential in terms of section 27(3) of the Building Act 1991. That provision assures ‘to every person’ the right to inspect building consent documentation ‘other than any plan or specification that the person who submitted it, the owner, or any subsequent owner has marked as being confidential because of the need to safeguard the copyright of the plan or specification, or because of any requirements of the owner of the building relating to the security of the building’.
Section 27(3) of the Building Act expressly declares, however, that it is subject to the LGOIMA. This means that, even if withholding grounds related to copyright and security were made out, they could be outweighed, under section 7(1) of the LGOIMA, by countervailing factors of public interest favouring release if such factors existed in any particular case and were considered to be of sufficient weight.
In reliance upon the developer’s wishes, the Council refused to make the plans available to the requester. In reporting on its decision, the Council explained that the developer’s reasons for requesting confidentiality ‘were mainly for security reasons as provided for in Section 27(3) of the Building Act. They feared that the submitters to the Environment Court who opposed the development, who included [the requester], would use the plans to frustrate the development putting it at risk, and cause them harassment and insecurity’. The investigation tended to confirm that, while the developer maintained concerns about copyright in various aspects of the plans, his fundamental objection to their disclosure was based upon a fear that, if the requester were given access to the plans, the requester might be able to take action which might delay construction. It was difficult to see how such concerns could be justified, for it seemed the only form of action, based on information in the plans, that might delay the project would be some kind of official intervention. If the requester were able to persuade an appropriate authority to take action of that sort, the action would relate, not to any proper ‘requirements of the owner relating to the security of the building’, but rather to matters of compliance with the Resource Management Act or the Building Act.
Due to an oversight, the building consent plans made available at the commencement of the investigation were incomplete and did not disclose certain changes in the style and shape of the building which had been made at the building consent stage. Consequently, it was only late in the piece that the existence of changes became apparent.
The Council maintained that all the altered plans were ‘generally in accordance with the plans and details submitted’ so that its approval of them was entirely within its discretion in terms of the conditions of resource consent. The question of whether the approved altered plans complied with the resource consent was not at issue in this investigation. However, if withholding grounds related to copyright and security could be made out, the existence of changes might, in terms of section 7(1), be a countervailing factor of public interest favouring release which would outweigh the withholding grounds. In this respect, refusal of the request would have the effect of concealing the apparent differences between the resource consent and the building consent documentation from the requester. This would be contrary to the purpose expressed in section 27(1) of the Building Act 'to enable the public to be informed of their obligations and to participate effectively under this Act'. This provision constitutes statutory recognition of a public interest in the availability of such information.
In this particular case, the preliminary view was formed that, even if withholding grounds related to copyright and building security had been made out, they would be outweighed, as to all the plans with the possible exception of the detailed layout of the residential part of the project, by the public interest in effective participation under the Building Act. The Council decided at that point, with the concurrence of the developer, to release all plans excluding the residential layout. This satisfied the requirements of the requester and the investigation was discontinued.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.