Fernbank Farm

Ian Lewis made this Freedom of Information request to Wirral Metropolitan Borough Council

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

The request was refused by Wirral Metropolitan Borough Council.

Dear Wirral Metropolitan Borough Council,

I have emailed the Assistant Chief Executive and wish to ensure these questions are considered as requests under the Freedom of Information Act and any responses published in accordance with the terms of the Act:

- the name of the officer who took the decision not to renew the lease on Fernbank Farm and when.
- the name of the officer who took the decision not to communicate that decision to the tenants of Fernbank Farm
- the name of the officer who took the decision to dispose of Fernbank Farm, over and above any of the other 400 tenanted sites referred to in the letter dated 21 February 2014 from the Assistant Chief Executive to me
- how much advice was provided, and the nature of that advice, from the Department of Law, as headed by either Mr Norman or Mr Tour

As far as I am aware, none of these questions can be considered either commercially sensitive or subject to compromise agreements previously agreed.

The decision to dispose of Fernbank Farm was not referred to Cabinet until November 2013, at which point the report was withdrawn due to the legal case.

I would therefore like to know under which section/subsection of the Scheme of Delegation (sections 4a, Scheme of Non Executive Delegation of Functions to Officers and 4b, Scheme of Delegation of Executive Functions to Officers as provided to me by the Head of Law), this decision was taken and the name of the Officer taking that decision.

I also request a list of the 400 tenanted sites and all other non-tenanted sites; why the manner of disposal imposed on Fernbank Farm was rejected for those 400 sites and the indicative value of those sites, based on most recent valuation.

Yours faithfully,

Councillor Ian Lewis
Leasowe & Moreton East

Cllr Leah Fraser left an annotation ()

Further to the request by Councillor Ian Lewis, I request details of all 400 council-owned sites that are tenanted; their value and the reason why they were rejected for disposal or if they have been earmarked for disposal.

Paul Cardin left an annotation ()

The longest I've waited for an answer is about 16 months. I've also had a good half a dozen that have stretched out well over a year. Mainly due to self-serving machinations that they just can't snap out of.

Good luck with the abnormal council !

Corrin, Jane, Wirral Metropolitan Borough Council

Good Afternoon,

Thank you for your email below.  Your questions below are being considered
under Environmental Information Regulations (EIR). 

Requests for information which are considered under EIR follow a similar
but not identical process to Freedom of Information requests.

 

The Council needs to extend the time period to respond to you from 20
workings days to 30 working days, because of the volume of the information
requested.  Please see an extract from the legislation below as means of
an explanation:-

 

Where a request is made under regulation 5, the public authority may
extend the period of 20 working days referred to in the provisions in
paragraph (2) to 40 working days if it reasonably believes that the
complexity and volume of the information requested means that it is
impracticable either to comply with the request within the earlier period
or to make a decision to refuse to do so.

 

The Council believes it can respond to you within an additional 10 working
days.

Kind Regards

 

Jane Corrin

Information and Central Services Manager

 

Transformation and Resources

Information and Central Services

Wallasey Town Hall

Brighton Street

Wallasey

Wirral

Merseyside

CH44 8ED

[1][email address]

 

 

 

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ScarletPimpernel left an annotation ()

Wirral Council is referring to an extension of time under regulation 7, see http://www.legislation.gov.uk/uksi/2004/... .

ScarletPimpernel left an annotation ()

Twenty working days is 25th March 2014.
Thirty working days is 8th April 2014.
Forty working days is 24th April 2014.

So Wirral Council has already had thirty working days and seems to be stringing this out to forty working days to take full advantage of the fact that Good Friday and Easter Monday are not counted as working days.

Dear Corrin, Jane,

Disappointed that the additional 10 days has not enabled a response to be published. Can you please advise when this will happen?

Thanks

Yours sincerely,

Cllr Ian Lewis

Corrin, Jane, Wirral Metropolitan Borough Council

Good Morning,
The Council apologies that your enquiry remains unanswered.
After further review of the request and taking into account the volume of information under request; the Council needs to request a further time extension. This time extension we require, taking into account the Easter shutdown is April 30th 2014. We will of course provide a response to your enquiry earlier, if we are able to do so.
Kind Regards
Jane Corrin
Information and Central Services Manager
Transformation and Resources
Wirral Council

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Dear Corrin, Jane,

Thank you - I appreciate it is a sewries of requests - is none of the information requested available now?

Yours sincerely,

Cllr Ian Lewis

Corrin, Jane, Wirral Metropolitan Borough Council

Good Morning Councillor Lewis,
Sorry there is nothing that the Council can provide to you, at the
moment. However as soon as we can, we will prove an answer to your
enquiry.
Kind Regards
Jane Corrin

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Dear Corrin, Jane,

More than 40 days have now passed (as per regulation 5 of the EIR) and 10 days longer than the Authority indicated was necessary.

Can you please advise when a response to this FoI (reclassified as a request under EIR by the Authority) will be answered?

Thanks

Yours sincerely,

Cllr Ian Lewis

ScarletPimpernel left an annotation ()

As you're a councillor and as you point out it was on the agenda for a Cabinet meeting (but then withdrawn due to the pending legal case) try http://www.legislation.gov.uk/ukpga/1972... exercising your right as a councillor under s.100F of the Local Government Act 1972 to "Any document which is in the possession or under the control of a principal council and contains material relating to any business to be transacted at a meeting of the council or a committee or sub-committee of the council shall, subject to [subsections (2) to (2C)] below, be open to inspection by any member of the council." If they do try to stop you inspecting these documents they'll have to give a reason (or reasons why).

Corrin, Jane, Wirral Metropolitan Borough Council

Good Morning,
Thank you for your email below. The Council will be able to respond to
your enquiry by Wednesday 7th May 2014. Apologies for the delay in this
matter.
Kind Regards
Jane Corrin
Information and Central Services Manager
Transformation and Resources
Wirral Council

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Dear Jane Corrin,

It is now 1615hrs on Wednesday 7th May. Can you please publish the information as requested by me in February and promised, after several delays, by today?

I have no doubt that the delay is not within your team but this nonsense has gone on for long enough.

A set of perfectly straightforward requests has been dealt with as though I am seeking to breach the Official Secrets Act.

The longer this goes on the more I think someone has something to hide.

Yours sincerely,

Cllr Ian Lewis

Dave rimmer left an annotation ()

This situation is an absolute disgrace....our elected representative have to resort to FOI questions to get the information they request and even then are given the run around....looks like you are right Ian, they do have something to hide

James Griffiths left an annotation ()

G'day Councillor Lewis

Maybe this was a Big, ISUS or Working Neighbourhoods case and that is why it is a secret.

Keep up the great work exposing this lot.

Ooroo

James

Corrin, Jane, Wirral Metropolitan Borough Council

 Dear Councillor Lewis,

I refer to your request for information contained in your email of 24
February 2014. Your request was as follows:-

 

Dear Wirral Metropolitan Borough Council,
I have emailed the Assistant Chief Executive and wish to ensure these
questions are considered as requests under the Freedom of
Information Act and any responses published in accordance with the
terms of the Act:

- the name of the officer who took the decision not to renew the lease
on Fernbank Farm and when.
- the name of the officer who took the decision not to communicate that
decision to the tenants of Fernbank Farm
- the name of the officer who took the decision to dispose of Fernbank
Farm, over and above any of the other 400 tenanted sites
referred to in the letter dated 21 February 2014 from the Assistant
Chief Executive to me
- how much advice was provided, and the nature of that advice, from the
Department of Law, as headed by either Mr Norman or Mr Tour

As far as I am aware, none of these questions can be considered either
commercially sensitive or subject to compromise agreements previously
agreed.

The decision to dispose of Fernbank Farm was not referred to Cabinet
until November 2013, at which point the report was withdrawn due to the
legal case.

I would therefore like to know under which section/subsection of the
Scheme of Delegation (sections 4a, Scheme of Non Executive Delegation
of Functions to Officers and 4b, Scheme of Delegation of Executive
Functions to Officers as provided to me by the Head of Law), this
decision was taken and the name of the Officer taking that decision.

I also request a list of the 400 tenanted sites and all other
non-tenanted sites; why the manner of disposal imposed on Fernbank Farm
was rejected for those 400 sites and the indicative value of those
sites, based on most recent valuation

 

I consider that the information you have requested is environmental
information under the Environmental Information Regulations 2004.
Regulation 2 (1) (c) of the 2004 Regulations provides that measures
including administrative measures), such as policies, legislation,
plans, programmes, environmental agreements, and activities affecting or
likely to affect the elements is environmental information. Policies and
measures likely to affect Fernbank Farm, (the Manor Drive /Sandbrook
Lane site) is therefore environmental information.

 

You have requested information concerning the name of the officer who
took the decision not to renew the lease on Fernbank Farm and when.

You have also requested - the name of the officer who took the decision
not to communicate that decision to the tenants of Fernbank Farm and the
name of the officer who took the decision to dispose of Fernbank Farm,
over and above any of the other 400 tenanted sites referred to in the
letter dated 21 February 2014 from the Assistant Chief Executive to
yourself.

I consider it would be helpful in responding to your request for
information to provide some background information about the site,
having regard to the duty to provide advice and assistance under
Regulation 9 of the 2004 Regulations.

 

 

Background

The site at Fernbank Farm had on 12 June 1997 been confirmed by a
Planning Inspector, following an  public inquiry, as being correctly
allocated for housing under the Council’s Unitary Development Plan.(UDP)
This site was within the restraint area subject to the Interim Planning
Policy for New Housing Development between October 2005 and October
2012, so housing development was effectively restricted during that
period, despite the UDP allocation. The Council at its meeting on 15
October 2012. approved a recommendation that this Interim Planning
Policy for new Housing Development adopted in October 2005 be revoked (
as part of the Proposed Submission Draft Core Strategy). The decision of
the Council made on 15 October 2012, therefore removed the interim
restriction on housing development on the Fernbank Farm site. This
decision came subsequent to the Section 25 Notice served by the Council
on the tenants of the Fernbank farm site (13 July 2012).The decision not
to proceed with the granting of a new lease to the tenants of Fernbank
Farm was therefore ancillary to the collective decision of the Council
that the land was no longer subject to a restriction on housing
development.

 

Response

The Council has a duty to make environmental information available on
request unless one or more of the exceptions in the Regulations apply.
The officers who carry out the asset management function would
potentially have been acting against the interest of the Council if they
had proceeded to negotiate a new lease, when the policy of the Council
changed on 15 October 2012; accordingly steps were taken by officers to
give effect to the aforementioned Council Policy. The Assistant Chief
Executive has already provided information in his letter to you dated 21
February 2014 concerning the critical financial position affecting the
Council in 2012/2013 and the need to generate capital receipts to reduce
reliance on Council borrowing.

 

I consider that your request for information concerning the names of
officers who were carrying out their asset management function on behalf
of the Council is exempt information under Regulation 13 of the
Environmental Information Regulations 2004 to the extent that the
information requested includes personal data, of which you as applicant
are not the data subject and as respects which the first condition in
Regulation 13 (2) is satisfied. Regulation 13 (2) (a) provides that the
first condition is satisfied

 

 

(a)   in a case where the information falls within any of the paragraphs
(a) to (e) of the Data Protection Act 1998, that the disclosure of the
information to a member of the public otherwise than under the
Regulations would contravene any of the data protection principles.

 

I consider that the disclosure of the requested information would
contravene the first data protection principle, that personal data shall
be processed fairly and lawfully, and shall not be processed unless at
least one of the conditions in Schedule 2 of the Data Protection Act
1998 is met. The only potentially relevant condition in Schedule
2 is Condition 6 (1), namely:-“The processing is necessary for the
purposes of legitimate interests pursued by the data controller or by
the third party or parties to whom the data are disclosed, except where
the processing is unwarranted in any particular case by reason of
prejudice to the rights and freedoms of legitimate interests of the data
subject “

 

I consider that the disclosure of this information would be processing
of personal data which processing would be unwarranted by reason of
prejudice to the rights and freedoms or legitimate interests of the data
subjects, namely the officers who were carrying out their asset
management function. I do not consider that such processing would be
necessary for the purposes of legitimate interests pursued by yourself
as a third party, being a member of the public for the purposes of the
Freedom of Information legislation. I have had regard to the recent
decision of the Court of Appeal in Edem and the Information Commissioner
and The Financial Services Authority {2014, EWCA Civ 92). The issue in
that appeal was whether disclosure of the names of three officials could
be withheld on the grounds that it was personal data and that disclosure
of that information would contravene the first principle of the Data
Protection Act 1998 “Personal data is data which relates to a living
individual “who can be identified””.(Lord Justice Moses-Paragraph 40 of
the decision). I consider that supplying information as to the identity
of officers concerned with the site at Fernbank Farm amounts to
supplying personal data. This is an absolute exemption and not subject
to the public interest test.

 

 

You have also requested information as to how much advice was provided,
and the nature of that advice, from the Department of Law, as headed by
either Mr Norman or Mr Tour. I consider that the exception contained in
Regulation 12 (5) (b) of the 2004 Regulations applies to the information
requested in that its disclosure would adversely affect the course of
justice. I consider that disclosure of the requested information would
have an adverse effect on the course of justice. The course of justice
has a wide meaning and includes material covered by legal professional
privilege. I have had regard to the guidance issued by the Information
Commissioner. “The course of justice and inquiries exception (Regulation
12 (5)(b)) “Version 1. In the case of DCLG v. Information Commissioner
&WR [2012 UKUT 103 (AAC)] the Upper Tribunal considered the significance
of legal professional privilege under the Environmental Information
Regulations. The Upper Tribunal said it was relevant to take into
account any adverse effect upon legal professional privilege and the
administration of justice generally.

 

I consider that litigation privilege applies to communications made by
officers in Legal Services, which were made confidentially and for the
dominant purpose of giving advice to the client department in relation
to litigation, either pending or contemplated relating to the tenancy of
the Fernbank Farm site. This exception is subject to the public
interest. I am required by Regulation 12 (1) (b) to consider the public
interest test in applying this exception. In the DCLG case referred to
above, the Upper Tribunal accepted the submission that the risk of the
disclosure of legally privileged information, leading to a weakening of
confidence in the general principle of legal professional privilege was
a public interest factor of “very considerable weight” in favour of
maintaining the exception. It added that there would have to be “special
or unusual factors “  in a particular case to justify not giving it this
weight and in that case there were none. I consider that the same
factors apply in this case and that the public interest in maintaining
the exception applies in respect of your request for information, which
concerns advice communicated directly by officers in Legal Services to
the client department. I consider that the public interest is
maintaining confidentiality between lawyer and client, outweighs the
public interest in disclosure. Without comprehensive legal advice,
Council decision making may be compromised because it is not fully
informed.

 

You  referred to the following:- “The decision to dispose of Fernbank
Farm was not referred to Cabinet until November 2013, at which point the
report was withdrawn due to the legal case.” and also requested “ to
know under which section/subsection of the Scheme of Delegation
(sections 4a, Scheme of Non Executive Delegation of Functions to
Officers and 4b, Scheme of Delegation of Executive Functions to Officers
as provided to me by the Head of Law), this decision was taken and the
name of the Officer taking that decision.”.

 

The Council does not hold information in respect of this aspect of your
request as no formal decision has been taken by Cabinet to dispose of
the Fernbank Farm site.

 

The final part of your request for information concerns:-

 

a list of the 400 tenanted sites and all other non-tenanted sites; why
the manner of disposal imposed on Fernbank
Farm was rejected for those 400 sites and the indicative value of those
sites, based on most recent valuation

 

I consider that the exception contained in Regulation 12 (5 )(e) of the
2004 Regulations applies to this part of your request for information.
Regulation 12 (5) (e)  provides that a public authority may refuse to
disclose information to the extent that its disclosure would adversely
affect the confidentiality of commercial or industrial information where
such confidentiality is provided by law to protect a legitimate economic
interest. I have had regard to the guidance issued by the Information
Commissioner, “Confidentiality of commercial or industrial information
(regulation 12 (5) (e).”)

 

I consider that the information you are requesting is commercial in
nature, in that it relates to commercial activity in relation to the
Council itself, the owner of the sites and commercial activity in
respect of third parties, namely the tenants of those sites. I consider
that the Council is under a duty of confidentiality to those third
parties in respect of the information about tenanted sites owned by the
Council .I consider that the confidentiality is protecting a legitimate
economic interest both of the Council and those third parties and that
disclosure of the information at this time would adversely affect the
legitimate economic interests of the third parties and the Council. To
disclose information concerning non-tenanted sites, could adversely
affect the Council’s legitimate economic interest in selecting
appropriate tenants.

 

I am required by Regulation 12 (1) (b) to consider the public interest
test in applying this exception. Disclosure of the information requested
included recent valuation would be likely to prejudice the commercial
interests of the Council and adversely affect its bargaining position
which would result in less effective use of public money. Disclosure of
the information would make it less likely that companies or individuals
would negotiate with the Council in respect of tenancies. I am therefore
satisfied that the public interest in maintaining the exception
outweighs the public interest in disclosing the information.

 

I do not consider your query “why the manner of disposal imposed on
Fernbank Farm was rejected for those 400 sites” to be a valid request
for information.

 

I am therefore refusing your request for information under Regulation 14
of the Environmental Information Regulations 2004,relying on the
exceptions contained in Regulation 12 (5) (b) and (e), and Regulation
13 of the 2004 Regulations. You have the right to make representations
under Regulation 11 of the 2004 Regulations, which should be sent to
Jane Corrin, Town Hall, Brighton Street, Wallasey, CH44 8ED, email:
[1][email address]. If you are dissatisfied with this response
to your request for information, you have the right to complain to the
Information Commissioner, but would normally be expected to make
representations before complaining to the Commissioner.

 

The address is the Information Commissioner’s Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire SK9 5AF

[2]www.ico.gov.uk

 

Rosemary Lyon

Solicitor

Legal and Member Services

Transformation and Resources

Wirral Council

 

 

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References

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Dear Wirral Metropolitan Borough Council,

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

I am writing to request an internal review of Wirral Metropolitan Borough Council's handling of my FOI request 'Fernbank Farm'.

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

Yours faithfully,

Cllr Ian Lewis

James Griffiths left an annotation ()

G'day Councillor Lewis

Welcome to the world of BIG, ISUS and WORKING NEIGHBOURHOODS.

Aren't they clever little Munchkins then?

Ooroo

James

john hardaker left an annotation ()

Dear Councillor Lewis Its either The Dogged rosemary Lyon or slippery Surgit Tour who try their very best to avoid putting answers into the public domain by claiming this that or another exemption, as if the assets were their own private property whereas the are publicly owned assets managed or otherwise by the council. The sooner these officers realise they are Public Servants & as such are responsible A, to the ratepayers of Wirral & B overseen by 66 legally elected councillors the better instead of empire building at the expense of their paymasters Wirral residents.
Keep on fighting the good fight & one day they will become open & transparent ,well that's my dream anyway.

ScarletPimpernel left an annotation ()

You asked on your blog for a copy of regulation 13 (personal data) which can be read here http://www.legislation.gov.uk/uksi/2004/... .

Corrin, Jane, Wirral Metropolitan Borough Council

Good Morning,

With regard your request for an Internal Review; please see text below
which is Council’s response to your request.

 

As the reviewing officer I have taken into account the original enquiry,
processed under The Environmental Information Regulations and the
exception/s relied on in refusing to disclose the information
requested.  Extensive background information was supplied to you in the
original response and I do not intend to reproduce this in my response.

 

 1. Your original request asked for “…………. the name of the officer who
took the decision not to renew the lease on Fernbank Farm and when. 
The name of the officer who took the decision not to communicate
that decision to the tenants of Fernbank Farm
The name of the officer who took the decision to dispose of Fernbank
Farm, over and above any of the other 400 tenanted sites
referred to in the letter dated 21 February 2014 from the Assistant
Chief Executive to me
How much advice was provided and the nature of that advice, from the
Department of Law, as headed by either Mr Norman or Mr Tour…”

 

 2. You also asked “…I would therefore like to know under which
section/subsection of the Scheme of Delegation (sections 4a, Scheme
of Non Executive Delegation of Functions to Officers and 4b, Scheme
of Delegation of Executive Functions to Officers as provided to me
by the Head of Law), this decision was taken and the name of the
Officer taking that decision….”

 

 3. Your final question asked “….I also request a list of the 400
tenanted sites and all other non-tenanted sites; why the manner of
disposal imposed on Fernbank Farm was rejected for those 400 sites
and the indicative value of those sites, based on most recent
valuation…”

 

The names of the Officers were refused and the exception cited within
Regulation 13 of The Environmental Information Regulations was cited. 

As the reviewing officer I agree that the names of the officers are
exempt information under Regulation13.  This is because that information
constitutes Personal Data, of which you as the requestor are not the
Data Subject.  Disclosure of the information relating to the officers
names would contravene the first data protection principle.  This
principle states that Personal Data shall be processed fairly and
lawfully, and shall not be processed unless at least one of the
conditions in Schedule 2 of the Data Protection Act 1998 is met.

The relevant condition in Schedule 2, in this case is condition 6 (1),
“The processing is necessary for the purposes of legitimate interests
pursued by the data controller or by the third party or parties to whom
the data are disclosed, except where the processing is unwarranted in
any particular case by reason of prejudice to the rights and freedoms of
legitimate interests of the data subject “

 

I agree with the original response that disclosing the names would be
unwarranted processing by reason of prejudice to the rights and freedoms
or legitimate interests of the data subjects, namely the officers who
were carrying out duties on behalf of the Council.  The original
response also gave detail of the recent decision of the Court of Appeal
in Edem and the Information Commissioner and The Financial Services
Authority (2014, EWCA Civ 92).   
[1]http://www.11kbw.com/app/files/Judgments...

 

 

The second part of your enquiry related to how much/nature of advice
provided from the Department of Law.  The original response relied on
the exception contained in Regulation 12 (5) (b) of the EIR Regulations,
in that disclosure of the information would adversely affect the course
of justice.

As the reviewing officer I agree that the disclosure of the information
requested would have an adverse effect on the course of justice.  The
original response explained that the course of justice has a wide
meaning and that includes material covered by legal professional
privilege.

 I have also taken note of the guidance issued from The Information
Commissioner - “The course of justice and inquiries exception
(Regulation 12 (5)(b)) Version 1.”  
[2]http://ico.org.uk/~/media/documents/libr...

Litigation privilege can be applied to the communications made by
Officers in Legal Services.  The communications were provided
confidentially and the purpose of those communications were to provide
advice to a client department in relation to litigation.

I also consider that the consideration of the public interest test was
robust and thorough.

 

 

In relation to the third part of your enquiry, I believe that the
information is commercial information and the exception in Regulation 12
(5 )(e) of the legislation was correctly applied to this part of your
enquiry. I have taken note of the ICO guidance – “Confidentiality of
commercial or industrial information (regulation 12 (5) (e).”)
[3]http://ico.org.uk/for_organisations/guid...

The Council does owe a duty of confidentiality in respect of the
information relating to 3^rd party tenanted sites.  In relation to
non-tenanted sites, disclosure of information could adversely affect the
Council’s legitimate economic interest when selecting tenants.  The
public test was considered in the original response and it was
considered that disclosure of the information including recent
valuations would be likely to prejudice the commercial interests of the
Council.  To disclose the information could adversely affect the
bargaining position of the Council.

As the reviewing officer I endorse the original view and also believe
that disclosing the information would make it less likely 3^rd parties
would engage in negotiations with the Council regarding tenancies.

 

If you remain dissatisfied with this response to your request for an
Internal Review, you have the right to complain to the Information
Commissioner:-

 

Information Commissioner’s Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire SK9 5AF

[4]www.ico.gov.uk

 

Yours Sincerely

Jane Corrin

Information and Central Services Manager

Transformation and Resources

Wirral Council

 

 

 

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