EIR Request for Evidence Behind S80 Noise Abatement Notice Served by RBKC

Mrs Carrabino made this Freedom of Information request to Royal Borough of Kensington and Chelsea

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

Waiting for an internal review by Royal Borough of Kensington and Chelsea of their handling of this request.

Dear Royal Borough of Kensington and Chelsea,

Introduction

1. This is a request for information under Regulation 5(1) of the Environmental Information Regulations 2004 (“EIR”) made to the Royal Borough of Kensington and Chelsea (“the Council” or “RBKC”).

2. The information requested is summarised below; it relates to the Council’s decision to serve a noise abatement notice on Mr and Mrs Carrabino under section 80(1) of the Environmental Protection Act 1990 (“the Notice”) under reference SRCON/14/148340.

3. The Notice severely restricted Mr and Mrs Carrabino’s teenage sons’ freedoms and their “entitlement” (as declared by District Judge Roscoe in the Magistrates' Court proceedings) to play the piano in their family home.

4. The request is for information collected and held by the Council from 1st March 2014 until 8th April 2015.

5. The Council’s behaviour in this dispute and its decision to divert substantial public resources and taxpayer funds into a petty neighbour dispute about piano playing – a dispute which would have been resolved privately between neighbours had RBKC not intervened - must be scrutinized.

6. Regulation 5 of the EIR requires a response to this request as soon as possible, and within 20 days of receipt.

Background to request

7. The Council issued the Notice on 7th April 2015. Mr and Mrs Carrabino successfully appealed the Notice in Magistrates’ Court under section 80(3) of the EPA 1990.

8. RBKC lost their case in Westminster Magistrates’ Court in April 2016, the judge stating “Play is absolutely an entitlement” and finding that RBKC’s approach to noise nuisance is flawed.

9. RBKC was ordered to pay Mr and Mrs Carrabino’s costs in full. The judge stated “I have found that RBKC were not acting reasonably……..I will order costs against them and in favour of the Appellants.”

10. RBKC appealed the judge’s decisions to the High Court, but later withdrew the Notice and on 28th June 2017 the High Court Appeal hearing was vacated.

11. The evidence submitted by the Council for the Magistrates’ Court proceedings included references to the Acolaid database and a number of documents which the Council retains, but has never provided, e.g.:

(i) Environmental Health Officer field notes.

(ii) Ms X refers in her witness statement to “emailing the [Council’s] team”, and having sent “endless emails”.

(iii) Ms Georgina Seraphim (senior Environmental Health Officer) refers in her witness statement (paragraph 27) to “a total of approximately 67 complaints” from Mr and Ms X, the sole complainant.

(iv) Mr X’s witness statement states “we have been relying on the advice of the Team ever since”, and “we have complained since late 2013, sometimes several times a week ….”.

(v) Ms X has referred to Mr Husband forwarding her email on to the noise team. She also refers to the Councillors as being very supportive and states that Cllrs Borwick and Gardener were very helpful.

(vi) Mr X testified in Court that he wrote to “all” the Councillors.

Definitions

12. In the request for information below:

(vii) References to “the Council” include elected members, present and former employees, servants and agents of the Royal Borough of Kensington and Chelsea, including (but not limited to) Environmental Health Officers, elected councillors and legal advisers.

(viii) References to Mr and Ms X are to the sole complainant who has provided evidence on the Council’s behalf in relation to the Carrabinos’ appeal against the Notice.

(ix) References to “communication” includes all written communication, including electronic communication.

(x) References to “records” includes all documentary records however stored, formatted or presented, including electronically, and including (but not limited to) minutes, notes of meetings, file notes and notes of conversations including telephone conversations.

(xi) References to “the Property” concern piano practising and playing at the home of Mr and Mrs Carrabino.

(xii) References to “the Notice” relate to the abatement notice served on Mr and Mrs Carrabino under section 80(1) of the Environmental Protection Act 1990 under reference SRCON/14/148340.

Information requested

Council Officer Field Notes

13. Field notes from site visits are requested from each of the environmental health officers who are said to have attended the complainant’s property to consider complaints. Council officers’ under-oath testimony in Magistrates’ Court confirmed they had prepared original field notes immediately following visits to the complainant’s property, the date of known visits are recorded as follows:

(i) 14th April 2014

(ii) 9th December 2014 and 8th March 2015

(iii) 12th December 2014

(iv) 13th December 2014

(v) 8th March 2015

Field notes and records of all other site visits are also requested, including (but not limited to) those listed below which are known to have taken place:

(vi) the installation of the acoustic recording equipment (date unknown);
(vii) the removal of the acoustic recording equipment (date unknown);
(viii) at least one other date in 2014.

Records of Complaints Received and Council Response

14. The Council recorded 67 complaints by Mr and Mrs X over a twelve month period.

(i) Mr X stated in witness evidence he sent letters and / or emails on:
April 11th and 12th, 2014
January 5th, 6th, 7th, 8th, 12th, 14th, 24th 2015; and
February 11th 19th, and 20th, 2015.

(ii) Ms Seraphim (senior officer) confirmed in witness evidence that complaints had been received from Mr and / or Ms X on:
20th January, 2015;
23rd January, 2015 at 17.52 and 21.16;
1st February, 2015 at 09.59;
11th February, 2015;
15th February, 2015 at 18.59 and 19.39;
25th February, 2015 at 20.24; and
8th March, 2015 at 20.28

15. Officer 1 confirmed in witness evidence that he had communicated regularly with Mr and / or Ms X between April 2014 and April 2015.

16. The information requested is:

(i) All complaints and communications, and records of complaints and communications, from Mr and / or Ms X to the Council in relation to the Property;

(ii) All communications and records of communications from the Council to Mr and / or Ms X in relation to the Property;

Acoustic recordings

17. In a letter dated 11th May 2017 from RBKC to Mr and Mrs Carrabino’s legal counsel, RBKC confirms that acoustic recordings taken by the Council at the complainant’s residence had been destroyed.

The information requested is:

(i) All communications, records and records of communications between the complainant, elected members, officers and/or employees (current or former) of the Council in relation to the acoustic recordings taken at the complainant’s property of the piano playing, specifically:

(a) In relation to the installation of the acoustic recording equipment;

(b) In relation to the removal of the acoustic recording equipment;

(c) In relation to the results of the acoustic recordings;

(d) In relation to the instructions to reformat the memory card containing the acoustic recordings;

(e) In relation to the reasons given for reformatting the memory card; and

(f) In relation to proposed steps to be taken following the supposed "malfunction" of the acoustic recording equipment.

Councillor Involvement

17. Mr X testified in Court that he wrote to “all” the Councillors;

18. Ms X has referred to Mr Husband forwarding her email on to the noise team. She also refers to the Councillors as being very supportive and states that Cllrs Borwick and Gardener were very helpful.

19. It has been established in previous proceedings that councillor communications are “held” for the purposes of EIR where a councillor has involved himself or herself in the execution of council functions. Mr and Ms X’s testimony has indicated that councillors Husband, Borwick and Gardener (and perhaps others) have involved themselves in council action.

The information requested is:

(i) All communications, records and records of communications between elected members, officers and/or employees (current or former) of the Council in relation to the Property;

(ii) All communications, records and records of communications between elected members, officers and/or employees (current or former) of the Council in relation to the acoustic recordings taken at the complainant’s property of the piano playing.

(iii) All communications, records and records of communications between elected members, officers and/or employees (current or former) of the Council in relation to the Notice.

Next steps

20. The EIR require that information to be made available as soon as possible, and at most within 20 days from the receipt of this request. I look forward to your prompt response.

Yours faithfully,

Mrs Carrabino

Dear Royal Borough of Kensington and Chelsea,

I would be grateful if you could please answer my FOI Request as is required by law.
A response was due by yesterday, 10th December 2018.

Yours faithfully,

Mrs Carrabino

Royal Borough of Kensington and Chelsea

Information request
Our reference: 803201

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Dear Mrs Carrabino
 
Environmental Information Regulations 2004
 
Thank you for your request for information that was received on 9 November
2018 concerning:
 
The information requested is summarised below; it relates to the Council's
decision to serve a noise abatement notice under section 80(1) of the
Environmental Protection Act 1990 ('the Notice') under reference
SRCON/14/148340.

The request is for information collected and held by the Council from 1st
March 2014 until 8th April 2015.

1. Information requested: Council Officer Field Notes
Field notes from site visits are requested from each of the environmental
health officers who are said to have attended the complainant's property
to consider complaints. Council officers' under-oath testimony in
Magistrates' Court confirmed they had prepared original field notes
immediately following visits to the complainant's property, the date of
known visits are recorded as follows:
(i)14th April 2014
(ii)9th December 2014 and 8th March 2015
(iii)12th December 2014
(iv)13th December 2014
(v)8th March 2015
Field notes and records of all other site visits are also requested,
including (but not limited to) those listed below which are known to have
taken place:
(vi) the installation of the acoustic recording equipment (date unknown);
(vii) the removal of the acoustic recording equipment (date unknown);
(viii) at least one other date in 2014.
Records of Complaints Received and Council Response
 
2. The information requested is:
(i)All complaints and communications, and records of complaints and
communications, from Mr and / or Ms X to the Council in relation to the
Property;
(ii)All communications and records of communications from the Council to
Mr and / or Ms X in relation to the Property;
The information requested is:
(i)All communications, records and records of communications between the
complainant, elected members, officers and/or employees (current or
former) of the Council in relation to the acoustic recordings taken at the
complainant's property of the piano playing, specifically:
(a)In relation to the installation of the acoustic recording equipment;
(b)In relation to the removal of the acoustic recording equipment;
(c)In relation to the results of the acoustic recordings;
(d)In relation to the instructions to reformat the memory card containing
the acoustic recordings;
(e)In relation to the reasons given for reformatting the memory card; and
(f)In relation to proposed steps to be taken following the supposed
"malfunction" of the acoustic recording equipment.
 
3. The information requested is:
(i)All communications, records and records of communications between
elected members, officers and/or employees (current or former) of the
Council in relation to the Property;
(ii)All communications, records and records of communications between
elected members, officers and/or employees (current or former) of the
Council in relation to the acoustic recordings taken at the complainant's
property of the piano playing.
(iii)All communications, records and records of communications between
elected members, officers and/or employees (current or former) of the
Council in relation to the Notice.
 
We are dealing with your request under the Environmental Information
Regulations 2004 and we aim to send a response as soon as possible. We
apologise for the delay in processing your request.
 
In some cases, a fee may be payable. If we decide a fee is payable, we
will send you a fee notice and we will require you to pay the fee before
proceeding with your request.
 
The Environmental Information Regulations 2004 may restrict the release of
some or all of the information you have requested. We will carry out an
assessment and if any exceptions apply to some or all of the information
then we might not provide that information to you. We will inform you if
this is the case and advise you of your rights to request an internal
review and to complain to the Information Commissioner's Office.
 
We will also advise you if we cannot provide you with the information
requested for any other reason together with the reason(s) why and details
of how you may appeal (if appropriate).
 
Yours sincerely
 
 
Information Management Team
 
NOTE: Please do not edit the subject line when replying to this email.
 

Royal Borough of Kensington and Chelsea

1 Attachment

Information request
Our reference: 803201

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Dear Mrs Carrabino
 
Thank you for your request for information received on 9 November 2018.
 
Please find attached our response to your request. Please accept our
apologies for the delay in responding.
 
If you are dissatisfied with your response please send your Internal
Review request to the email address below

[1][RBKC request email]

 
Yours sincerely
 
 
Information Management Team
 
NOTE: Please do not edit the subject line when replying to this email.
 

References

Visible links
1. mailto:[RBKC request email]

Dear Royal Borough of Kensington and Chelsea,

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

I am writing to request an internal review of Royal Borough of Kensington and Chelsea's handling of my EIR request 'EIR Request for Evidence Behind S80 Noise Abatement Notice Served by RBKC'.

Request for an Internal Review

As a taxpayer I was forced to contribute unwillingly to the Council’s expenditure of reportedly hundreds of thousands of pounds on behalf of one resident in a petty neighbour dispute that spanned more than two years. Despite the Carrabinos’ strenuous attempts to avoid or minimise the cost of legal proceedings the Council pursued the matter relentlessly and ultimately lost. District Judge Roscoe who heard the case found that RBKC’s approach to noise nuisance was flawed and they behaved unreasonably. I should be entitled to this information.

I summarise here my response to the Council’s use of exceptions for each section of the request:

1. Council Officer Field Notes

The Council refuses this information and relies on EIR Regulations 12(3) and 13 - personal data.

(i) Field notes are factual information. Personal data can be redacted.

2. Records of Complaints Received and Council Response

The Council refuses this information and relies on EIR Regulations 12(3) and 13 - personal data; Regulation 12(5) - course of justice; Regulation 12(5)(f)(i),(ii) and (iii) - interests of a third party.

(i) Complaints themselves are not personal data. Complaints were acted upon and reportedly cost the Council hundreds of thousands of pounds. The taxpayer is entitled to know the nature and the extent of the complaints that council officers acted upon, so causing this expenditure.

(ii) Personal data not already in the public domain can be redacted. In any event, the complainant (Mr X and the former Mrs X) in the dispute have willingly gone on record in a public court in the presence of reporters, they have spoken freely to the media about their complaints, and they have complained on public social media.

RBKC’s website alerts complainants that their details will be made known if the Council acts on their behalf and takes a matter to court.

(iii) Reliance on Regulation 12(5)(b) is wrong because this was not a confidential enforcement case.

Also, as above, RBKC alerts complainants that their details will be made known if the Council acts on their behalf and takes a matter to court.

(iv) Regulation 12(5)(f)(i),(ii) and (iii) does not apply: Mr X and the former Mrs X were together the sole complainant. They demanded the Council take action on their behalf and willingly attended a public court hearing in the presence of the media, to testify and confirm their complaints.

The Council is wrong to assert that the information was provided with an expectation that it would remain confidential. Once the complainant agreed to be a witness in a public court they could not have expected their complaints to remain confidential.

3. Acoustic recordings

The Council refuses this information and relies on EIR Regulation 12(5) (b) - course of justice.

(i) Regulation 12(5)(b) does not apply. This was not a confidential enforcement case.

(ii) The Council has not responded to the request in (c). There will most certainly be records and / or communications with the complainant and with other officers about the results of the SD card.

(iii) Neither has the Council answered the request in (d) to (f) appropriately. The request is not for a record of steps to sort out SD / memory cards, rather it is a request for the communications around the SD card, ie. a record of discussions about what to do with the SD card, how to do it and why it should be reformatted.

4. Councillor Involvement

The Council refuses this information and relies on EIR Regulation 12(5) (b) - course of justice.

(i) Regulation 12(5)(b) does not apply. This was not a confidential enforcement case, RBKC did not apply the correct position in law, and neither did they behave reasonably.

(ii) Legal professional privilege cannot be relied upon:

First, legal proceedings had not yet begun.

Furthermore, the Council was ordered to pay full costs to Mr and Mrs Carrabino in the Magistrates’ Court proceedings. The judgment makes clear that RBKC had a flawed approach to noise nuisance and they behaved unreasonably. The Council either never considered the correct position in law, or they ignored it.

The Council makes the statement in its response:

“It is imperative that council officers and elected members are able to
receive proper advice to carry out their functions effectively.”

The Council did not carry out their functions effectively or reasonably. They lost their case in Court and they were ordered to pay the Carrabinos’ costs in full.

They did not consider the correct position in law or they ignored it!

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

Yours faithfully,

Mrs Carrabino

Royal Borough of Kensington and Chelsea

Information request
Our reference: 803201

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Dear Mrs Carrabino
 
Thank you for your request for a review received on 31 January 2019. I am
sorry that you are dissatisfied with our attempts to handle your request
under the Environmental Information Regulations 2004.
 
I can confirm that we are considering your concerns and we will aim to
provide you with a response by 28 February 2019.
 
Yours sincerely
 
Information Management Team
 
NOTE: Please do not edit the subject line when replying to this email.
 

Mrs Carrabino left an annotation ()

Status Update of EIR Request Dated 9th November 2018:


EIR Request for Evidence Behind S80 Noise Abatement Notice Served by RBKC”

This request for information was submitted on 9th November 2018. Following a lengthy period of non-response, avoidance and obfuscation by RBKC regarding the information requested (detailed timeline below), RBKC eventually responded on the 29th July 2019 as instructed by the Information Commissioner’s Office (“ICO”) (albeit late), explaining that it has amended its position and now seeks to rely on the “manifestly unreasonable” exception which allows a local authority to refuse an information request if it considers the burden of complying with the request too great.

In justifying its use of the “manifestly unreasonable” exception RBKC states that the information requested “relates to a neighbour dispute that is essentially private in character, and is of little wider public interest.“

RBKC then goes on to state that in undertaking a search for the information requested, it has found 1243 items over 254 email accounts. A search for acoustic recordings information related to the request found 502 items.

This “private” neighbour dispute appears to have had a remarkable amount of council-wide attention before the notice was served (and indeed after as detailed in the WhatDoTheyKnow EIR Request “RBKC Noise Abatement Notice”). This raises questions as to why so much of the council’s resources were diverted to a matter RBKC now seeks to characterise as a “private” neighbour dispute, whilst ignoring for example, the requests from concerned residents of Grenfell Action Group for improved fire safety measures in Grenfell Tower.

RBKC’s amended response to the information requested now, contrasts with RBKC’s position before the First Tier Tribunal in May 2017 regarding this same information that had been the subject of an EIR request in November 2015. At that time the First Tier Tribunal ruled that they accepted the senior officer, Mr Mehaffy’s, testimony that all the information requested and “held” by RBKC had been submitted to ICO and the Tribunal. RBKC did not rely on the “manifestly unreasonable” exception then and so it is not clear why it should do so now.

RBKC’s handling of this request, its obfuscation and lack of responsiveness, raise significant questions about both the information requested and the council’s approach to accountability and transparency.

The timeline to date has been as follows:

9th November 2018

This EIR request (ie. an information request under Environmental Information Regulations) was submitted on the “WhatDoTheyKnow” website;

28th January 2019

RBKC responded that it was refusing all of the information requested and it was relying on the “Personal Data” exceptions Regulations 12(3) and 13, and the “Course of Justice” exception Regulation 12(5)(b).

31st January 2019

An internal review of this decision was requested.

1st March 2019

ICO questioned RBKC’s response to this request (and the EIR request “RBKC Noise Abatement Notice”) and asked to see the information being refused. The ICO case officer was referred back to the request for information submitted in November 2015*. The information requested then was the same material that is the subject of this request - evidence, complaints, results of acoustic recordings, councilor involvement etc. This request continues to be vigorously fought by RBKC .

2nd May 2019

Discussions between ICO and RBKC ensued, and ICO had requested a further response by 17th May 2019.

On or around the 17th May deadline RBKC requested an extension of time to respond and this was granted.

30th May 2019.

As at 30th May RBKC had still not responded to ICO and so ICO served an Information Notice ordering a response by 28th June 2019.

28th June 2019

RBKC responded to ICO as ordered, and stated that it was amending its position with respect to this request and the request “RBKC Noise Abatement Notice”. ICO asked RBKC to notify the requestor of its amended position by 28th July 2019.

29th July 2019

RBKC responded (late) to the requestor that it was refusing the request in its entirety and was relying on the manifestly unreasonable exception set out in regulation 12(4)(b) of the Environmental Information Regulations 2004 (EIR).

* This information request had gone before the First Tier Tribunal and had been refused because it had been requested whilst legal proceedings were ongoing. There were grounds for appeal of this decision, but with legal proceedings over the information could be requested again.