Council properties in B8, B34 and B36 areas

The request was partially successful.

Dear Birmingham City Council,

Could you please let me know all the 3 and 4 bedroom properties that Birmingham City Council owns in B8, B34 and B36 areas. Could you also highlight any empty properties in those areas that satisfy the criteria.

Yours faithfully,

Peter H

Teresa E. Evans, Birmingham City Council

Dear Sir,

Freedom of Information Act 2000 – Request for Information

Thank you for your request for information held by the Council under the
provisions of the Freedom of Information Act 2000.

In some circumstances a fee may be payable and if that is the case, we
will let you know. A fees notice will be issued to you, and you will be
required to pay before we will proceed to deal with your request.

If you require any further information or are not happy with our response
please do not hesitate to contact a member of our team on 0121 303 4428
quoting the reference number above in any future communications.

Yours sincerely

Teresa Evans
Information Governance Officer

Data Protection Act 1998
The information you have provided within your Freedom of Information
request will be held on our database and may also be held within manual
records for a period of 2 years from the date Birmingham City Council
received your request. Any personal data that you provide to Birmingham
City Council will be held in line with the requirements set out within the
Data Protection Act 1998.

Re Use of Public Sector Information
Where Birmingham City Council is the copyright holder of any information
that may be released, re-use for personal, educational or non-commercial
purposes is permitted without further reference to the City Council. Where
the re-use is for other purposes, such as commercial re-use, the applicant
should notify the City Council in writing to seek approval or agree terms
for re-use.

 

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Donna McMullan, Birmingham City Council

1 Attachment

Dear Sir/Madam,

Freedom of Information Act 2000

I am writing in respect of your recent enquiry for information held by the
Authority under the provisions of the Freedom of Information Act 2000.

Please find herewith the following:

Could you please let me know all the 3 and 4 bedroom properties that
Birmingham City Council owns in B8, B34 and B36 areas. Could you also
highlight any empty properties in those areas that satisfy the criteria.

 

Please see the attached spread sheet which lists the requested Birmingham
City Council owned properties within your specified areas of Birmingham.

 

Empty properties.

 

Birmingham City Council is unable to provide you with a list of vacant or
empty properties, as it considers that the details of and addresses of
empty or vacant properties is exempt under s.31 and s.44 of the Freedom of
Information Act.

 

Birmingham City Council considers that the following exemptions are
applicable, namely

 

1.         s.31 (1) Information is exempt information if its disclosure
under this Act would, or would be likely to, prejudice (a) the prevention
or detection of crime.

 

2.         s.44 Prohibitions on disclosure, in particular, the First
Protocol of the European Convention of Human Rights, as ratified into UK
Law by the Human Rights Act 2000.

 

1.         s.31 prevention / detection of crime

 

Section 31 provides

(1)Information which is not exempt information by virtue of section 30 is
exempt information if its disclosure under this Act would, or would be
likely to, prejudice—

(a)the prevention or detection of crime,

 

S.31 is a qualified exemption, i.e. it requires a consideration of the
public interest in disclosure as opposed to withholding the requested
information.

 

Birmingham City Council considers that there is a strong public interest
in being open and transparent in relation to its functions. However, it
considers that any benefit arising from disclosure is far outweighed by
the real and substantial risk of harm, caused by the disclosure of
information relating to vacant properties to the world at large, arising
from criminal activities.

 

These will include thefts from the vacant buildings, such as lead from the
roof of the building, or internal fixtures, criminal damage and squatting,
which is now a criminal offence.

 

Birmingham City Council is aware of the lower chamber of the information
tribunal in 2011, in the case of Voyias v Camden Borough Council, and its
decision that information relating to the location of vacant properties
should be made public.

 

However, this was overturned by the Higher Chamber of the Information
Tribunal in July 2012, who ordered that this matter be returned to the
Lower Chamber for a re-hearing, which occurred in January 2013.

 

This second lower tribunal re-hearing decided that the Local Authority was
entitled to refuse to provide information under s.31 of the Freedom of
Information Act.

 

The tribunal stated, in their judgment, that 

 

“In deciding that the requested information was lawfully withheld, the
lower tribunal was plainly mindful of the guidance given by the Upper
Tribunal that, when determining whether the public interest balance
weighed in favour of maintaining the s. 31(1)(a) exemption, regard should
be had, not merely to the direct adverse consequences of the disclosure
but also to any indirect consequences which arose as ‘realistic
possibilities’. Ultimately, the lower tribunal concluded that ‘the small
weight that the public interest in disclosure bears does not come close to
equalling the public interest in preventing the categories of crime we
have identified in this decision’  “

 

As you will note from the above decision in the case of Voyias v Camden
Borough Council, the Tribunal agreed that s.31 was applicable and that the
public interest in withholding the information, e.g. the public interest
in preventing crime, outweighed the public interest in disclosure.

 

Whilst the Tribunal confirmed that the disclosure of information would be
likely to give rise to criminal activity, both in terms of theft from the
vacant properties, and the activities of individuals who may decide to
squat in vacant properties. It must, however, be noted that whilst
squatting is not a criminal offence, it normally involves criminal damage,
both in terms of gaining access to the property, and then to change the
locks to secure the property.

 

2.         s.44 Prohibitions on disclosure.

 

In addition, s.44 of the Freedom of Information Act provides that

 

Prohibitions on disclosure.

(1)Information is exempt information if its disclosure (otherwise than
under this Act) by the public authority holding it—

(a)is prohibited by or under any enactment,

(b)is incompatible with any Community obligation, or

(c)would constitute or be punishable as a contempt of court.

 

Birmingham City Council considers that the disclosure of the information
requested is incompatible with the European Convention on Human Rights
(“ECHR”), as implemented in the Human Rights Act 1998.

 

Article 1 of the First protocol to the ECHR provides that:-

 

“Every natural or legal person is entitled to the peaceful enjoyment of
his possessions. No one shall be deprived of his possessions except in the
public interest and subject to the conditions provided for by law and by
the general principles of international law.

 

The preceding provisions shall not, however, in any way impair the right
of a State to enforce such laws as it deems necessary to control the use
of property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties.”

 

As you will note, this human right extends to non-individuals, such as
companies. This has been confirmed in a number of court decisions,
including, of particular note, the Court of Appeal decision of Veolia v
Nottinghamshire County Council, where the Court of Appeal confirmed that
Veolia, a listed company, was entitled to use Article 1 of the first
protocol, as a basis to block disclosure of information in response to a
Freedom of Information Act.

 

Birmingham City Council considers that by disclosing information
identifying vacant properties owned by other bodies, without their
consent, there is a strong likelihood that this information would be used
to facilitate squatting, which, is now a criminal offence in addition to
being deemed interference with the peaceful enjoyment of possessions. 
However, to facilitate squatting, individuals would need to obtain entry
into the premises, and then would seek to change locks and other security,
which by its very nature, is criminal damage.

 

S.44 is an absolute exemption, i.e. there is no requirement to consider
the public interest.

 

In light of the above, Birmingham City Council considers that disclosure
of the information identifying void properties, other than relating to
Birmingham City Council properties, would place Birmingham City Council in
breach of its legal obligations under the Human Rights Act, and in
addition, we consider that the public interest factors in relation to
section 31, outweigh the benefits, both in terms of illegal squatting, but
also theft of fixtures, fittings and architectural features.

 

Article 1 of the first protocol covers not just private individuals, but
also organisations, such as companies and other entities.

 

For the reasons set out above, Birmingham City Council considers that it
is entitled not to disclose the addresses of the void properties it is
aware of in Birmingham, as it considers that to do so would place
Birmingham City Council in breach of the ECHR and the Human Rights Act by
virtue of the First protocol of schedule 1 of the Act, and face potential
claims for compensation from property owners whose vacant property details
were disclosed without their consent, and who, as a result of the
disclosure, had squatters in their property, or had their properties
broken into and damaged.

Whilst we have undertaken a thorough search of the information held by
Birmingham City Council, it may be that, due to the size and amount of
information held by Birmingham City Council, some information may have
been inadvertently missed.

If you have any information which may assist us in determining or locating
any missed information, we would be grateful if you would contact us with
details of this information, so that we can conduct a further search.

If you are not satisfied with the response you may ask for an internal
review. Please contact the corporate team at the address below:

Performance & Information (WS)
PO Box 16366
Birmingham
B2 2YY
or
[1][email address]

If subsequently you are not satisfied with the Council’s decision you may
apply to the Information Commissioner for a decision. Generally, the ICO
cannot make a decision unless you have exhausted the complaints procedure
provided by the Council. The Information Commissioner can be contacted at
the following address:

The Information Commissioner
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Telephone: 01625 545745
Web Address: [2]www.ico.gov.uk

Yours sincerely

 

 

 

 

Donna McMullan

Information Governance Manager

Re use of Public Sector Information

The information provided is subject to Birmingham City Council copyright,
however, it may be re-used for personal, educational or non-commercial
purposes without further reference to the City Council. If the re-use is
for other purposes, such as commercial re-use, you should notify the City
Council in writing to seek approval or agree terms for re-use. Where
Birmingham City Council does not hold the copyright, it has indicated the
copyright holder. Permission for re-use should be sought from them
directly.

 

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References

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