22 Briton Crescent (18/04026/FUL) - Pre-application advice

Dear Croydon Borough Council,

The Applicant’s (undated) ‘Design, Access and Transport Statement’ refers to pre-application advice on the current proposals variously as 18/02578/PRE and/or 18/02567/PRE. I note from the Application Form that the advice was provided by Robert Naylor and apparently included the following comments:
1. There are concerns that the site survey data have not been undertaken correctly regarding the position and the mass of the existing building in 24 Briton Crescent.
2. For full planning application it will be helpful to submit a massing model view from the North West approach on Briton Crescent.
3. The double gable end does not read well on the façade and is not keeping with the character of the area.
4. The upper window of the right gable end does not complement the overall fenestration of the facade.
5. The features of the proposed building appear at odds with the street scene architecture.
6. The entrance of the proposed building needs to be more focal.
7. The proposed tiles at the rear of the scheme on the inner wall of the balconies are not cohesive to the overall language of the elevation.
8. Hit and miss brick detailing must be introduced to enable natural light into the associated rooms.
9. The flank elevation adjoining number 24 Briton Crescent should incorporate windows (high level) to enable natural light for internal spaces.
10. The front boundary treatment and planting to the street scene appears overly narrow-ensure relative buffer widths are incorporated with low boundary walls.
11. The landscape of the communal green areas at the rear of the site must be redesigned.
12. Any future submission should have the existing building shown in relation with the surrounding street scene.
13. There are some existing street trees that may impact the entrance of the rear car parking area.
14. A most suitable layout for cars and communal green space should be researched and proposed.
15. At the meeting it was agreed to merge the refuse store and cycle storage together taking under consideration the protection of the existing trees.
16. The screening (existing trees) at the rear of the site adjoining 9 Briton Close should be retained.
17. Further family unit should be provided (three beds or two bed-four-person unit).
18. Any future submission should contain a section through the scheme in order to highlight that the units in the roof space conation sufficient head room (above 1.5m).

Please provide any information relating to Mr Naylor’s advice, including but not restricted to copies of the following:
• the completed Request for Pre-Application Advice form,
• evidence of fee payment
• the Applicant's cover letter,
• all submitted drawings/reports etc
• letters/emails of consultation WITH internal/external consultees, (regarding architectural design, flood risk and sustainable drainage, car parking and cycle storage, waste storage, 'inclusivity' etc)
• comments/observations BY internal/external consultees
• details of any meeting arrangements,
• notes of any pre-application meeting[s], and
• the case officer’s advice letter[s] or email[s].

Yours faithfully,
Geoff Blyth

Dear Croydon Borough Council,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Croydon Borough Council's handling of my FOI request '22 Briton Crescent (18/04026/FUL) - Pre-application advice'.

Your Ref: EIR/10010083

I refer to the Council’s response of 28 September 2018.

MISSING INFORMATION
- Transportation Observations.
The disclosed letter(or email) from Pete Smith (Head of Development Management) to the ‘Transportation Team’ dated 22 May 2018 includes “Hey Frank. This is an Aventier Pre-App scheme. Could you please have a look and provide comments on this one within 7 days. ...”
The response to at least one similar request, suggests that ‘Frank’ may be Frank Hagan, a Senior Transport Planner. See the link below:
https://www.whatdotheyknow.com/request/4...

Under ‘Parking and Transport’, the advice letter (presumably) from Robert Naylor dated 29 June 2018, refers to opinions and requirements of ‘Strategic Transport’, which I assume is another name given to Croydon’s ‘Transportation Team’.

+++ In the circumstances, it seems highly likely that observations WERE provided by the ‘Transportation Team’ (possibly Frank Hagan?) and these should now be provided.

- Meeting(s) [Scheduling, Attendance and Notes/Minutes]

Mr Naylor’s letter of 29 June also refers to “...our meeting at Bernard Weatherill House on Thursday 28th June 2018...”.

+++ Given the Council’s response to previous requests for information regarding other pre-application advice on other proposals, it seems highly likely that there will be correspondence relating to the setting up of the above meeting and perhaps other aspects of the Council’s pre-application service. This information should now be provided.

+++ Given those earlier Council responses, it also seems highly likely that there will be notes/minutes of the above meeting. Copies of these notes should now be provided along with any and the information that shows who attended the meeting and to whom the agreed notes/minutes were circulated.

REDACTION - Regulation 12(3) and 13

You say that you ”... have removed the names and details of junior staff not involved in decision making. ... it is the custom and practice for the Council not to release the junior staff details. We have retained the names of staff down to ‘Head of Service’ level, which the Councils considers meets the Transparency Code issued by the Secretary of State for Communities and Local Government. Furthermore the council considers that this position is consistent with guidance issued by the Information Commissioner, including a Decision Notice issued in respect of a similar request FS50276863. In regard to these redactions of junior staff, the Council is similarly relying on the provisons of Regulation 12(3) and 13 of the EIR.”

- The Council's ‘blanket approach’ to redaction
As I understand it, Regulation 12(3) and 13 CAN have the effect of prohibiting the Council from disclosing third party personal data, but ONLY if this would breach the Data Protection Act.
Regulation 12(2) establishes a presumption in favour of disclosure. If the Council has established that an exception is engaged, it is THEN necessary to weigh the competing public interests, per regulation 12(1)(b). That is, the public interest in disclosing the information as weighed against the public interest in maintaining the exception.

I believe that the Council has neither shown WHY an exception is engaged in THIS case, nor carried out the Public Interest [PI] test required by the legislation.

It is also pertinent to note that DN relied upon, was issued in respect of a request made and handled under the Freedom of Information Act 2000 [FOIA]. The Response makes clear however, that THIS request has rightly been considered under the provisions of the Environmental Information Regulations 2004 [EIR] and the ‘presumption in favour of disclosure’ should therefore apply.

- Decision Notice - ICO Case Reference FS50276863
I do not believe that the ICO Decision Notice [DN] referred to [FS50276863] DOES relate to a ‘similar request’.
Paragraph 5 of the Decision Notice [DN] on which the Council relies, confirms that initially the FSA claimed that its policy was “… not … to disclose details of staff below Head of Department level.” Paragraph 13 however, explains that “During the course of the Commissioner’s investigation …The FSA agreed to disclose the names of its employees who worked at the level of manager …. The FSA accepted the Commissioner’s preliminary view that such senior individuals within the organisation had a high level of accountability and responsibility which warranted the disclosure of their names”.

The ICO therefore does NOT adopt the simplified approach suggested by Croydon. Instead, the DN illustrates that for a request - which is not a routine matter for which a ‘formula’ is the only practical approach - ALL 3 fairness tests - or factors* - that the ICO has described need to be applied (see also the supplementary factors at paragraph 48). Their application must have specific regard to the situation.

The three factors ICO considers in judging fairness in disclosure:
1. the individual’s reasonable expectations of what would happen to their information;
2. the consequences of disclosure (if it would cause any unnecessary or unjustified damage or distress TO THE INDIVIDUAL concerned); and
3. the balance between the rights and freedoms of the data subject and the LEGITIMATE INTERESTS OF THE PUBLIC.
The supplementary factors that should be considered:
4. the seniority of the role
5. whether the role is public facing
6. whether the position involves a significant level of personal judgement and individual responsibility.

‘Seniority’ is therefore only ONE factor and the Council has NOT demonstrated the weighing of ALL the ‘factors’ set out by the ICO in guidance.

- Local Government Transparency Code 2015 [DCLG]
Although the Code appears to deal essentially with pre-defined datasets and a routine publishing scheme, paragraph 6 helpfully explains “This Code ensures local people can now see ... how decisions are taken and who is taking them …”.
Paragraph 15 confirms that "….The Data Protection Act 1998 does not restrict or inhibit information being published about councillors or senior local authority officers because of the legitimate public interest in the scrutiny of such senior individuals and decision makers…".

As set out above, the DN relied upon explicitly demonstrates that the Code level of seniority was NOT accepted by the ICO as a sufficient basis for determining disclosure. That is because the decision-making powers/public facing nature etc. of officers’ roles and public interest must all be weighed up.
Paragraph 22 of the Code also usefully clarifies that “… Where information would otherwise fall within one of the exemptions from disclosure, for instance, under … the Environmental Information Regulations 2004 … Local authorities should start from the PRESUMPTION OF OPENNESS AND DISCLOSURE OF INFORMATION [my emphasis], and not rely on exemptions to withhold information unless absolutely necessary.”

- Officers of the Council
Although I understand why those senior employees in scope for the Code are most likely to ‘tick the box’ against the three factors (esp. 1 and 3) much (if not all) of the time, that does NOT automatically 'eliminate' everyone else. It must depend on their role and the specific circumstances... and how the relevant ‘factors’ apply to those.
I believe that there may well be circumstances [like here] where it IS entirely appropriate to release the details of more junior officers, particularly [but not only] when those details are already in the public domain. As the ICO makes clear, “… there is a public interest in fully understanding the reasons for public authorities’ decisions, to remove any suspicion of manipulating the facts, or ‘spin’. For example, this may well be a public interest argument for disclosing advice given to decision makers. …”

The information provided as part of THIS request clearly illustrates the significant reliance of the case officer on the specialist advice provided by the Council’s ‘Spatial Planning’, Trees’ and ‘Transportation’ teams, with their observations being repeated, often verbatim, within the Mr Naylor’s formal letter to Aventier Ltd of 29 June 2018.

There IS a legitimate interest in public disclosure of the details of officers (usually ‘professionals’) who provide this ‘specialist’ advice to the case officer on particular aspects of a planning application. As I understand it, although the Council’s advice is given (via the case officer) ‘without prejudice’, the main aim of the pre-application service is to ensure that the officers involved could support any subsequent application.

It is reasonable to expect that the same officers could (or SHOULD) be asked to advise the case officer in any such application, which could (or SHOULD) influence the recommendation to the decision-maker and thereby potentially influence the ultimate decision. Such disclosures will therefore have the wider benefit of increasing public confidence in the reliability and robustness of the Council’s consultation and decision-making processes.

+++ I believe this Council’s approach amounts to a form of “blanket redaction” and I do not agree that this position “…is consistent with guidance issued by the Information Commissioner …” and/or the “ Decision Notice issued in respect of … FS50276863]…”. Indeed, I believe that both ICO guidance AND elements of the Notice strongly suggest that the Council should reconsider its position with regard to redaction of ‘personal data’ in this case and more generally.

+++ THIS request is being considered under the EIR and the ‘presumption in favour of disclosure’ should be applied. I believe the onus is [still] on the Council to clearly demonstrate WHY, in THIS case, it would be unfair to disclose the redacted information. If, for any piece of that information, they cannot so demonstrate, then the information should be disclosed.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/2...

Yours faithfully,
Geoff Blyth

Dear Freedom Of Information,
Your Ref: EIR/10010083
I requested an internal review on 1 October 2018.
By law, I should have received a response '"... as soon as possible and no later than 40 working days after the date of receipt ..." [Regulation 11(4)]. It is now 50 days since the Council will have received my request for review.
If I hear nothing from the Council by 17 December 2018, I will complain to the Information Commissioner about this matter.

Yours sincerely,
Geoff Blyth