Financial advice on signing regeneration agreement with Lend Lease

Jerry Flynn made this Freedom of Information request to Southwark 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 Southwark Borough Council.

Dear Southwark Borough Council,

Prior to signing the Regeneration Agreement for the regeneration of Elephant & Castle with Lend Lease in July 2010, Southwark received financial advice from Herbert Smith financial consultants. Please send me a copy of any financial advice received from Herbert Smith in relation to the negotiation of the Regeneration Agreement.

Yours faithfully,

Jerry Flynn
35% Campaign
www.35percent.org

Regeneration, Southwark Borough Council

Southwark Council - Information request

Our reference: 570311

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Regeneration, Southwark Borough Council

Southwark Council - Information request

Our reference: 570311

show quoted sections

Dear Ms Plewniak,

I am writing to request an internal review of your handling of my information request, for the advice received by the Council on signing regeneration agreement provided by Herbert Smith.

You claim in your response to my information request, that Herbert Smith did not provide advice to Southwark on signing the regeneration agreement. However, the following press release from Herbert Smith confirms, on the contrary, that it did:
http://www.herbertsmithfreehills.com/new...

I would ask that you check your records and look once again at my request.

I look forward to hearing from you.

Yours faithfully,

Jerry Flynn
35% Campaign
www.35percent.org

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

Regeneration, Southwark Borough Council

Southwark Council - Information request

Our reference: 570311

show quoted sections

Regeneration, Southwark Borough Council

Southwark Council - Information request

Our reference: 570311

show quoted sections

Dear Mr Hugget,

Thank you for clarifying in your response of 1st Dec 2015, that Herbert Smith assisted the Council with the regeneration agreement and advised on planning and compulsory purchase matters.

We would be grateful if would forward us any reports, written advice or communications received by the Council concerning these matters from Herbert Smith.

We look forward to hearing from you.

Yours sincerely,

Jerry Flynn
www.35percent.org

Regeneration, Southwark Borough Council

Southwark Council - Information request

Our reference: 593146

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CEXaccessinfo, Southwark Borough Council

Link: [1]File-List

Dear Mr Flynn,

 

Re: Your request for information: 593146

Thank you for your request for information that was received on 11 January
2016 in which you requested:

Thank you for clarifying in your response of 1st Dec 2015, that Herbert
Smith assisted the Council with the regeneration agreement and advised on
planning and compulsory purchase matters. We would be grateful if would
forward us any reports, written advice or communications received by the
Council concerning these matters from Herbert Smith.

 

Your request was being dealt with under Environmental Information
Regulations EIR (2004).

 

Having considered your request, as well as consulting Herbert Smith who
were our legal advisers, the council regrets to inform you that the
information you requested is being withheld in accordance with regulation
12 (5) (b) – the course of justice that also applies to material covered
by legal professional privilege.

 

Reliance upon this exception under EIR is always subject to the
requirement under Regulation 12(1)(b) that the public interest in
maintaining the exception outweighs the public interest in disclosing the
information.

In this instance, the council asserts that the public interest in
providing this information does not out weigh the likely prejudice to the
council’s legal interests.

In arriving at this view, the council has considered the following factors
both for and against the release of information;

Factors in favour of release:

·                Regulation 5 of the Environmental Information Regulations
states where a public authority holds environmental information; it shall
make it available on request and, as a starting point, the council is
required to apply a presumption in favour of disclosure.

·                The specific request is in relation to a large scale
regeneration scheme covering a large area of the borough and affecting
many residents as a result.  The sheer scale of the plans carries with it
an inherent amount of public interest.

Factors in favour of withholding:

·                The fact that this advice was procured by the council and
provided to the council under the presumption of legal professional
privilege

·                The fact that the council has a right to seek independent
legal opinion free from external prejudice

·                The fact the council has the right to a free and frank
exchange of ideas in relation to this advice

·                The fact the Regeneration Agreement is ongoing and
therefore the advice is still ‘live’ .

          

 

Therefore, in accordance with Regulation 14 of the Environmental
Information Regulations 2004 this letter acts as a Refusal Notice.

 

If you are unhappy with the service you have received in relation to your
request and wish to make an appeal for a review of our decision, you
should write to the Corporate Freedom of Information Manager at:

Corporate Freedom of Information Officer

The Governance Team (2^nd floor)

PO Box 64529
London

SE1P 5LX
Email: [2][Southwark Borough Council request email]

 

If you are not content with the outcome of your appeal, you may apply
directly to the Information Commissioner for a decision. Generally, the
Information Commissioner cannot make a decision unless you have first
exhausted our internal appeal procedure and you should contact him within
2 months of the outcome of your internal appeal.

Further information on the Freedom of Information Act is available through
the Information Commissioner at the:

Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire

SK9 5AF
Telephone: 0303 123 1113
Internet: [3]www.ico.org.uk

 

 

 

Yours sincerely,

 

Martyna Plewniak

System Information Project Officer

 

 

 

 

 

 

 

 

The email you received and any files transmitted with it are confidential,
may be covered by legal and/or professional privilege and are intended
solely for the use of the individual or entity to whom they are addressed.
If you have received this in error please notify us immediately. If you
are not the intended recipient of the email or the person responsible for
delivering it to them you may not copy it, forward it or otherwise use it
for any purpose or disclose its contents to any other person. To do so may
be unlawful. Where opinions are expressed in the email they are not
necessarily those of Southwark Council and Southwark Council is not
responsible for any changes made to the message after it has been sent.

References

Visible links
1. file:///tmp/cid:filelist.xml@01D16291.5FA42D30
2. mailto:[Southwark Borough Council request email]
3. http://www.ico.org.uk/

Dear Ms Plewniak,

Some of the information we requested clearly relates to general advice on planning and construction matters rather than legal advice.

This is confirmed in your previous correspondence and further confirmed on the company's website which says "Martin Taylor advised on construction, and Clare Fielding and Elizabeth Christie advised on planning":
http://www.herbertsmithfreehills.com/new...

This information would therefore not come under legal professional privilege as it is not legal advice.

You also claim that the regeneration agreement is still 'live' and that therefore the advice received on signing it comes under legal professional privilege. However, you have not explained how disclosure of that 'legally privileged information' will necessarily adversely affect the course of justice, which is a requirement in order for information to be withheld under exception 12(5)(b) of the EIR. The regeneration agreement was signed nearly six years ago and is therefore well beyond the time limit in which it can be legally challenged under judicial review.

I therefore request that you explain exactly how disclosure of the information requested would adversely affect the course of justice or disclose it without further delay.

I look forward to hearing from you.

Yours sincerely,

Jerry Flynn
www.35percent.org

Jerry Hewitt left an annotation ()

Why would Southwark Borough Council get the same firm of lawyers who act for Lend Lease? Bizarre.

Regeneration, Southwark Borough Council

Southwark Council - Information request

Our reference: 593146

show quoted sections

Dear Mr Huggett,

We still haven't received a response to our request for an internal review of this decision.

Please let me know when this will be forthcoming.

I look forward to hearing from you.

Yours sincerely,

Jerry Flynn
35% Campaign
www.35percent.org

Huggett, Alistair, Southwark Borough Council

My apologies Mr Flynn,

 

This review seems to have slipped through my net – I’ll get on to it
immediately,

 

Kind regards

Alistair

The email you received and any files transmitted with it are confidential,
may be covered by legal and/or professional privilege and are intended
solely for the use of the individual or entity to whom they are addressed.
If you have received this in error please notify us immediately. If you
are not the intended recipient of the email or the person responsible for
delivering it to them you may not copy it, forward it or otherwise use it
for any purpose or disclose its contents to any other person. To do so may
be unlawful. Where opinions are expressed in the email they are not
necessarily those of Southwark Council and Southwark Council is not
responsible for any changes made to the message after it has been sent.

Regeneration, Southwark Borough Council

Southwark Council - Information request

Our reference: 593146

--------------------------------------------------------------------------

Re: Environmental Information Regulations 2004

Dear Mr Flynn

Re: Your request for information: 593146

Thank you for your request on 27 February 2016 for a review of the
information you received. I must apologise for the length of time it has
taken to respond.  

Your original request on 11 January 2016:

“Thank you for clarifying in your response of 1st Dec 2015, that Herbert
Smith assisted the Council with the regeneration agreement and advised on
planning and compulsory purchase matters. We would be grateful if would
forward us any reports, written advice or communications received by the
Council concerning these matters from Herbert Smith.”

This was dealt with under the Environmental Information Regulations EIR
(2004).

We responded that:

“Having considered your request, as well as consulting Herbert Smith who
were our legal advisers, the council regrets to inform you that the
information you requested is being withheld in accordance with regulation
12 (5) (b) – the course of justice that also applies to material covered
by legal professional privilege.”

Reliance upon this exception under EIR is always subject to the
requirement under Regulation 12(1)(b) that the public interest in
maintaining the exception outweighs the public interest in disclosing the
information.

In this instance, the council asserts that the public interest in
providing this information does not out weigh the likely prejudice to the
council’s legal interests. As a result:

 “ … in accordance with Regulation 14 of the Environmental Information
Regulations 2004 this letter acts as a Refusal Notice.”

We have checked that the council has considered the factors both for and
against the release of information and correctly applied the exception. We
have also gone back to both our legal team and that of Herbert Smith
Freehills.

We can confirm that a number of lawyers from Herbert Smith Freehills did
provide legal advice to the Council over many months in in connection with
the Development Agreement. The advice was mainly given in meetings but
referred to the specific terms of the development agreement and in our
opinion falls within the section 42 exemption of Legal professional
Privilege. Therefore we believe that we have correctly applied the
exception.

Yours sincerely

Alistair Huggett
Planning Projects Manager
[email address]

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