Financial Viability data for the proposed development of Princes Parade, Hythe

The request was refused by Shepway District Council.

Dear Shepway District Council,
This request is raised under the Environmental Information Regulations 2004 concerning the Princes Parade land owned by Shepway District Council. The EIRs are applicable to this site since it is known to be subject to environmental emissions.
Please provide the following information via the WhatDoTheyKnow website:
1. Detailed cost estimates for building and running a leisure centre on Princes Parade as derived by the council or received from its contractors during the period to 1 Sept 2015 to 11 April 2017. The data being requested should include a breakdown of all cost elements for the leisure centre.
2. The assumptions made in deriving the above estimates.

Specific data being requested includes, without being limited to:
a. The so-called “back of the fag packet viability appraisal” (Email Tibbalds to SDC dated 12 Sept 2016 refers),
b. Abnormal costs, such as for moving the road, upgrading the existing road, and relocating the rising main (Email Tibbalds to SDC dated 12 Sept 2016 refers),
c. All Infrastructure costs (e.g. sewers and Sustainable Urban Drainage Systems),
d. All data provided by Savills relating to the Princes Parade project, including the high level viability assessment,
e. All data provided by cost consultants, Betteridge and Milson, relating to the Princes Parade project.
For the avoidance of doubt, please ensure that all the relevant information provided to the council by other parties in the form of email attachments, or using private email addresses or through any other indirect means, are included within your response. It is known, for example, that some of this data has been provided by contractors, who had access to the ”box” facility used extensively by Tibbalds to exchange data with the council.
In the event that this request is denied in whole or in part, I ask that you justify any redactions or refusal in compliance with s14 of the Environmental Information Regulations 2004, by clearly identifying the documents concerned and specifying the reasons, including
- The exception you are relying on under regulation 12(4), 12(5) or 13, and
- Everything you considered in reaching your decision under the public interest test.

Yours faithfully,

Dr G J Burrell

Shepway District Council

Dear Dr G J Burrell,

Thank you for your request dated 12 April 2017. 

We will endeavour to supply the information you have requested within the requisite 20 working days. If we think that it will take longer, we will contact you.

Miss Ayse Niazi
Complaints & Street Naming and numbering officer
Tel: 01303 853437
Fax: 01303 853548
Shepway District Council, Civic Centre, Castle Hill Avenue,
Folkestone, Kent, CT20 2QY
E-mail: [Shepway District Council request email]
Website: www.shepway.gov.uk
 
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Shepway District Council

Dear Dr Burrell,

 

I refer to your request dated 12 April 2017 under the Environmental
Information Regulations 2004.  Your request is as follows:-

 

“This request is raised under the Environmental Information Regulations
2004 concerning the Princes Parade land owned by Shepway District
Council.  The EIRs are applicable to this site since it is known to be
subject to environmental emissions.

Please provide the following information via the WhatDoTheyKnow website:

1.      Detailed cost estimates for building and running a leisure centre
on Princes Parade as derived by the council or received from its
contractors during the period to 1 Sept 2015 to 11 April 2017.  The data
being requested should include a breakdown of all cost elements for the
leisure centre.

2.      The assumptions made in deriving the above estimates.

 

Specific data being requested includes, without being limited to:

a.      The so-called “back of the fag packet viability appraisal” (Email
Tibbalds to SDC dated 12 Sept 2016 refers),

b.      Abnormal costs, such as for moving the road, upgrading the
existing road, and relocating the rising main (Email Tibbalds to SDC dated
12 Sept 2016 refers),

c.      All Infrastructure costs (e.g. sewers and Sustainable Urban
Drainage Systems),

d.      All data provided by Savills relating to the Princes Parade
project, including the high level viability assessment,

e.      All data provided by cost consultants, Betteridge and Milson,
relating to the Princes Parade project.

 

For the avoidance of doubt, please ensure that all the relevant
information provided to the council by other parties in the form of email
attachments, or using private email addresses or through any other
indirect means, are included within your response.  It is known, for
example, that some of this data has been provided by contractors, who had
access to the ”box” facility used extensively by Tibbalds to exchange data
with the council.

In the event that this request is denied in whole or in part, I ask that
you justify any redactions or refusal in compliance with s14 of the
Environmental Information Regulations 2004, by clearly identifying the
documents concerned and specifying the reasons, including

-       The exception you are relying on under regulation 12(4), 12(5) or
13, and

-       Everything you considered in reaching your decision under the
public interest test.”

 

Your request is therefore for the costs of building and running the
proposed leisure centre.

Turning first to the costs of running the centre, the Council refuses your
request on the ground of the exception contained in Regulation 12(4)(a) as
the council does not hold the information.

So far as the request for the costs of building the centre, the Council
has decided to refuse your request on the grounds of the exceptions
contained in Regulations 12(4)(d), 12(5)(d) and 12(5)(e).

Refusal under Regulation 12(4)(d).  The ground for refusing the request is
that it is for material that is in the course of completion.  The Cabinet
of the Council will receive a report on the proposals in due course and
the information you request will be part of the report which is not yet
completed.

 

The Council has assessed the public interest.  In favour of disclosure is
the argument that there is a general interest in transparency.  In
addition there is a particular public interest in the development, again
an argument in favour of disclosure.

 

Set against this are the arguments in favour of maintaining the
exception.  Firstly, the information will be presented to decision makers
in a report which will set out the context and other factors, including
the financing of the costs (which are in any event only estimates at this
stage).  The decision on the leisure centre will probably be made in a
meeting where the public are excluded.   The decision makers need a “safe
space” to consider the issues and release of the information would be
detrimental to the decision making process.  Secondly, the costs are only
estimates at this stage and whilst the public will be informed of the
likely costs of the entire project, release of detailed estimates of
building the leisure centre would not advance the public understanding of
the implications and would be detrimental to the public interest as set
out above.

 

In all the circumstances it is considered that the public interest in
maintaining the exception outweighs the public interest in disclosure.

 

Refusal under Regulation 12(5)(d).  The Council refuses your request
because to disclose the information would adversely affect the
confidentiality of proceedings.  The information will be presented to
decision makers (the Cabinet of the Council) in a report at a meeting
where it is expected that the public will be excluded by virtue of
paragraph  3 of schedule 12A Local Government Act 1972 (as amended) as the
report will contain information relating to the financial or business
affairs of any particular person.  Release of the information now would
adversely affect the confidentiality of those proceedings.

 

The Council has assessed the public interest.  In favour of disclosure is
the argument that there is a general interest in transparency.  In
addition there is a particular public interest in the development, again
an argument in favour of disclosure.

 

Set against this the argument in favour of maintaining the exception is
that the information needs to be considered confidentially as it contains
commercial information, which if revealed would be detrimental to the
Council’s interests.  In addition the decision makers will need to discuss
the development, exploring options and perhaps “thinking the
unthinkable”.  The proposals are opposed by some and the decision makers
need the “safe space” of confidentiality to discuss the issues

 

In all the circumstances it is considered that the public interest in
maintaining the exception outweighs the public interest in disclosure.

 

Refusal under Regulation 12(5)(e).  The ground for refusing the request is
 that to disclose information would adversely affect the confidentiality
of commercial information where such confidentiality is provided by law
to protect a legitimate economic interest.

 

The information is commercial and subject to confidentiality.  The
legitimate economic interest is the Council’s.  To disclose the
information would adversely affect this economic interest.  The Council
has a fiduciary duty to ensure it acts in the best interests of the
taxpayers and to ensure that it uses the resources entrusted to it well. 
Disclosure of the information would be detrimental to the competitive
process that will be undertaken to secure the construction of the leisure
centre.    Disclosure of the information would as a consequence adversely
affect the confidentiality.

 

The Council has assessed the public interest.  In favour of disclosure is
the argument that there is a general interest in transparency.  In
addition there is a particular public interest in the development, again
an argument in favour of disclosure.

 

Set against this the argument in favour of maintaining the exception is
that the Council will be seeking tenders for the construction of the
leisure centre, the release of estimates would affect the competitive
process which the council relies on to obtain the best value for the work
it puts out to tender.  It is in the public interest to maintain proper
competitive processes to ensure best value and for the council to obtain
the best possible price.

 

In all the circumstances it is considered that the public interest in
maintaining the exception outweighs the public interest in disclosure.

 

Should you require any further information, or if you are not satisfied
with our response, please do not hesitate to contact me. You may also
request an internal review by writing to the following address:

 

Freedom of Information Appeals Officer
Democratic Services and Law
Shepway District Council
Castle Hill Avenue
Folkestone
Kent CT20 2QY

 

Alternatively you can use our Customer Comment Form which can be accessed
at our website [1]www.shepway.gov.uk

 

In addition, if you are not satisfied with our response you may apply to
the Information Commissioner for an independent review at the following
address:

 

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

Telephone 0303 123 1113 (local rate) or 01625 545 745 if you prefer to use
a national rate number

[2]www.ico.org.uk

Yours sincerely

 

Rachel Neville

Information Officer

Tel: 01303 853437

Mob:  07802 720679

Shepway District Council, Civic Centre, Castle Hill Avenue,

Folkestone, Kent, CT20 2QY

E-mail: [3][Shepway District Council request email]

Website: [4]www.shepway.gov.uk

                                           

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The contents and any attachments of this e-mail message are
confidential and intended only for the named addressees. If you
have received it in error, please advise the sender immediately by
return email and then delete it from your system. Any unauthorised
distribution or copying of this transmission, or misuse or
wrongful disclosure of information contained in it, is strictly
prohibited. Shepway District Council cannot accept liability for
any statements made which are clearly the sender's own and not
expressly made on behalf of the council. All email to and from the
council may be monitored in accordance with the council’s
policies.

References

Visible links
1. http://www.shepway.gov.uk/
http://www.shepway.gov.uk/
2. http://www.ico.org.uk/
3. mailto:[Shepway District Council request email]
4. http://www.shepway.gov.uk/
5. http://www.twitter.com/shepwaydc
6. http://www.facebook.com/shepwaydistrictc...

Dear Shepway District Council,
Please pass this on to the person who conducts FOI/EIR reviews.

I am writing to request an internal review of Shepway District Council's handling of my EIR request 'Financial Viability data for the proposed development of Princes Parade, Hythe'. I am dissatisfied with the Council's response for the following reasons:
1. The Council’s blanket refusal to release any of the information requested runs counter to the principles established by the 1995 landmark case, Carvel & Guardian Newspapers v Council of the European Union (T-194/94). Not only has my request been interpreted in a highly restrictive manner by failing to give proper consideration as to which of numerous existing relevant documents could have been released, the Council is now claiming the documents are ‘confidential’ when that was not their status prior to my request. Further, when an applicant requests a document covered by the 'confidentiality’ exception the authority is required to balance its interest against the applicant's and cannot refuse a whole class of documents automatically, as has been done in this case.
2. The Council has not clearly explained how the withheld documents satisfy the exceptions criteria to justify them being withheld from disclosure. The arguments presented are legally flawed, as outlined below.
3. The rudimentary public interest tests that the Council claims to have conducted are biased and demonstrate a lack of understanding of the rights of the public and why the balance of interests favours disclosure.
4. Without implying an acceptance that any of the requested documents should have been withheld, it should be noted that my request included examples of documents that could not be considered ‘confidential’, including, for example, the ‘back-of-the-fag-packet’ estimates sought by Tibbalds and documents prepared by Betteridge and Milson, etc. It is known that a number of other documents also exist, some of which fall within the scope of my request: for example, there has been extensive use of a “box” facility to exchange information between Tibbalds and the Council – the ‘box’ will inevitably contain documents that have been overlooked and should have been released.
5. I am willing to accept that the Council does not possess any information that specifically concerns running costs [Exception 12(4)(a)].

Refusal under Regulation 12(4)(d).
6. As stated in the Council’s response, the material requested is but part of a larger report that is in course of preparation and will be presented to Cabinet at some unknown later date. The individual documents that act as inputs to the overall viability assessment contain key matters of detail that, contrary to what has been claimed, will advance the understanding of the project by the public’s experts; hitherto the Council has repeatedly demonstrated an over-riding unwillingness to be transparent about the details of the Princes Parade project. The project is complex and of high risk (technically and financially); the local community have significant well-founded concerns that the planned approach will fail to deliver the necessary facilities and is likely to place our Council tax money at risk. The public are seeking information to determine what financial provisions are being made to overcome those issues.
7. The fact that the costs are only estimates at this stage (and therefore likely to change) is one reason why they cannot be considered ‘confidential’. Their disclosure at this time would therefore have no adverse impact on the proceedings of the proposed Cabinet decision meeting, contrary to the Council’s assertion. It is inconceivable that the 7 Feb 2017 Cabinet would have agreed to proceed to a planning application in the absence of some awareness of the cost estimates. (It may be relevant that a number of internal Princes Parade meetings were held with Cabinet members in private, without any records being made of the discussions). It is therefore disingenuous to suggest that, since only estimated data is available, “release of detailed estimates of building the leisure centre would not advance the public understanding of the implications”. Expertise available to the public is of a sufficient caliber to enable a meaningful assessment to be made of the practicability of the Council’s planned approach, as can be derived from detailed cost estimates taken in conjunction with our existing extensive technical knowledge of the site.
8. Princes Parade is a difficult contaminated landfill site, with strong heritage implications and a range of other technical issues that are known to have been overlooked, which places this much used public amenity at risk of suffering a serious, irreversible adverse impact if the Council fails to “get it right”. The stated intention to withhold such key data precludes the public from engaging properly in the planning process for an application that the Council plans to submit to itself for approval. In view of the latter, the Council’s refusal to exercise full transparency is totally unreasonable and not balanced out by any evidence that the authority would sustain tangible damage if the information were disclosed.
9. Further, it is relevant that the 7 Feb 2017 Cabinet deferred consideration of financial viability until a subsequent Cabinet meeting after planning consent has been granted. So far no financial data whatsoever for the current proposal have been disclosed. The deferment of any consideration of cost estimates while proceeding with a project, about which viability concerns have been expressed by the public, means that the public has been denied access to any form of financial data until the Council has irreversibly granted itself planning consent without exposing any financial justification for the project. Indeed the public are aware of a better value alternative which the Council has failed to consider.

Refusal under Regulation 12(5)(d).
10. In applying paragraph 3 of schedule 12A Local Government Act 1972 (as amended) the Council has failed to recognise the over-riding Qualification imposed by para 9 of schedule 12A of the Act that applies in this case, namely that “information is not exempt information if it relates to proposed development for which the local planning authority may grant itself planning permission pursuant to regulation 3 of the Town and Country Planning General Regulations 1992”. Neither therefore can it be classified as an exception under the EIRs.
11. The Cabinet meeting will specifically be discussing a report relating to a planning application that the local authority will have submitted to itself. That meeting cannot therefore legally be held in private since, in accordance with LGA 1972 (as amended), the information to be considered will not be ‘exempt’. This reason for refusing release of the requested information is therefore not legally valid.

Refusal under Regulation 12(5)(e).
12. Case Law [Bristol City Council v IC and Portland and Brunswick Squares Association EA2010/0012)] has established that all four of the following criteria must apply for this exception to be engaged, namely:
(i) The information is commercial or industrial in nature, and
(ii) Confidentiality is provided by law, and
(iii) The confidentially is protecting a legitimate economic interest, and
(iv) The confidentiality would be adversely affected by disclosure.
13. In regard to the 4 criteria: Item (i) does not apply because the information is not commercial since no intellectual property is involved, neither is it industrial in nature. (ii) Confidentiality is not provided by any specific law in this case. (The fact that the Council ‘has a fiduciary duty to ensure it acts in the best interests of the taxpayers and to ensure that it uses the resources entrusted to it’ is not a justifiable reason for engaging this exception, otherwise it would be applicable to all business conducted by all local authorities. Since the information is not ‘confidential’, criteria (iii) and (iv) become irrelevant.
14. The argument that release of estimates would affect the competitive process which the council relies on to obtain best value carries no validity in practice. Release of estimates to bidders frequently occurs in competitive tendering since this acts as a gauge to ensure they are able to correctly interpret the tender specifications. There is no evidence that this is generally bad practice and, for this site, there are a number of unknowns that expose the project to significant risks and of which bidders will need to be advised. Further, the figures sought in my request are estimates based upon currently available information that will inevitably be subject to change.
15. The expertise available to the public, and the knowledge that can be applied to this project is extensive. The nature of the environmental conditions on the site make this a complex project with substantial scope for technical misunderstandings. Access to the most detailed estimates available, together with knowledge of the assumptions, provides the key to gauging the project risks and whether it has been specified in an achievable manner. Due to the impact of this development on the local community it is considered essential that the best quality of public engagement is permitted, including all relevant information. The public has an interest in conducting a peer review based upon a detailed understanding of the estimates to enable them to identify any over-sights which could impact on their well-being, which could be costly if discovered too late.
16. There are therefore very strong public interest reasons why the requested information should be released in addition to the substantive legal reasons.

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,

Dr G J Burrell

Shepway District Council

Dear Dr Burrell,

 

I acknowledge receipt of your application dated 21 May 2017 (which was
received by us on 22 May 2017) for a review of our response of 11 May 2017
to your Environmental Information Regulations request.  We will be dealing
with this by way of an Internal Review in line with the procedure outlined
in our response.  Your request will be dealt with in accordance with
Shepway District Council's policy on such matters which is subject to
guidance produced by the Information Commissioner's Office in line with
Regulation 11 of the EIRs and the EIR Code of Practice.

 

We anticipate that the internal review will be completed within 20 working
days of your request, however in exceptional circumstances it may take
slightly longer. If this is the case with your enquiry, then we will
endeavour to notify you and explain why more time is needed.

 

Yours sincerely,

 

 

Rachel Neville

Information Officer

Tel: 01303 853437

Mob:  07802 720679

Shepway District Council, Civic Centre, Castle Hill Avenue,

Folkestone, Kent, CT20 2QY

E-mail: [1][Shepway District Council request email]

Website: [2]www.shepway.gov.uk

                                           

Follow us on [3]Twitter and [4]Facebook

P Please consider the Environment before printing this email

 

 

show quoted sections

Shepway District Council

Dear Dr Burrell,

 

 

I refer to your application dated 21 May 2017 for an internal review of
the council’s decision on your request under the Environmental Information
Regulations 2004 dated 12 April 2017.  Your request  was as follows:-

 

 “This request is raised under the Environmental Information Regulations
2004 concerning the Princes Parade land owned by Shepway District
Council.  The EIRs are applicable to this site since it is known to be
subject to environmental emissions.

Please provide the following information via the WhatDoTheyKnow website:

1.      Detailed cost estimates for building and running a leisure centre
on Princes Parade as derived by the council or received from its
contractors during the period to 1 Sept 2015 to 11 April 2017.  The data
being requested should include a breakdown of all cost elements for the
leisure centre.

2.      The assumptions made in deriving the above estimates.

 

Specific data being requested includes, without being limited to:

a.      The so-called “back of the fag packet viability appraisal”
(Email Tibbalds to SDC dated 12 Sept 2016 refers),

b.      Abnormal costs, such as for moving the road, upgrading the
existing road, and relocating the rising main (Email Tibbalds to SDC dated
12 Sept 2016 refers),

c.      All Infrastructure costs (e.g. sewers and Sustainable Urban
Drainage Systems),

d.      All data provided by Savills relating to the Princes Parade
project, including the high level viability assessment,

e.      All data provided by cost consultants, Betteridge and Milson,
relating to the Princes Parade project.

 

For the avoidance of doubt, please ensure that all the relevant
information provided to the council by other parties in the form of email
attachments, or using private email addresses or through any other
indirect means, are included within your response.  It is known, for
example, that some of this data has been provided by contractors, who had
access to the ”box” facility used extensively by Tibbalds to exchange data
with the council.

In the event that this request is denied in whole or in part, I ask that
you justify any redactions or refusal in compliance with s14 of the
Environmental Information Regulations 2004, by clearly identifying the
documents concerned and specifying the reasons, including

-       The exception you are relying on under regulation 12(4), 12(5) or
13, and

-       Everything you considered in reaching your decision under the
public interest test.”

 

Turning first to the costs of running the centre The council refused your
request on information relating to the running costs of the proposed
centre on the ground of the exception contained in rregulation 12(4)(a) in
that the council does not hold the information.  This refusal does not
form part of your request for an internal review.

You have requested now that the decision be reviewed.  This email is the
council’s decision on your request.  An internal review  is a re –
examination of the original decision.

 

I will turn first to paragraphs numbered 1 – 4 of your email.  Your
request was for “detailed cost estimates...” (you go on then to specify
certain matters) and these are what the council’s decision was based
on.  I do not consider therefore that the council has interpreted your
request restrictively.  You state that “the Council is now claiming the
documents are “confidential” when that was not their status prior to my
request”.  The exceptions the council has relied on do not require the
information to have a particular status conferred on it prior to any
request.  Once a request is received it is assessed and the information
released or withheld.  One of the grounds for refusal – the exception
contained in regulation 12 (5) (e) – does relate to confidential
information but that confidentiality is provided by law rather than any
status conferred on it.

 

Refusal under regulation 12 (4) (d).   Material in the course of
completion.

 

 

Your view is that the public interest lies in the disclosure of the
documents.  You refer to the “rudimentary public interest test” however it
seems to me that the council has set out why it considers that the public
interest lies in maintaining the exception.  You disagree where the public
interest lies but I am not convinced that the council were incorrect in
determining, as it did, where the public interest lies.

 

Refusal under regulation 12 (5) (d). 

 

It is correct to say that information is not exempt information if it
relates to proposed development for which the local planning authority may
grant itself planning permission pursuant to Regulation 3 of the Town and
Country Planning General Regulations 1992.

 

Any decision to make the planning application will, of course, be held in
a public session of the cabinet.  However the financial costs of building
the centre are a separate matter and can be exempt information.  It will,
of course, be for the members of the cabinet to decide at the meeting
whether to exclude the public.  Again the council set out its reasons why
it considered that the public interest lies in maintaining the exception;
you may disagree with this but I think it was a judgement correctly made. 

 

Refusal under regulation 12 (5) (e).  

 

You say that the information is not “commercial” because “no intellectual
property is involved”.  There is no requirement that the information
attract intellectual property rights.  The council has explained why it
considers that its commercial interests would be harmed and the public
interests it took into account.  I consider that the decision was correct.

 

In summary I have considered your request.  I have decided to uphold the
decision.

   

If you are not satisfied with our response you may apply to the
Information Commissioner for an independent review at the following
address:

 

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

Telephone 0303 123 1113 (local rate) or 01625 545 745 if you prefer to use
a national rate number

[1]www.ico.org.uk

 

Yours sincerely

 

 

 

 

 

Peter Wignall
T: 01303 853437
Shepway District Council, Civic Centre,
Castle Hill Avenue, Folkestone, Kent. CT20 2QY
E: [2][Shepway District Council request email]

[3]www.shepway.gov.uk
Follow us on Twitter and Facebook

 

 

The contents and any attachments of this e-mail message are
confidential and intended only for the named addressees. If you
have received it in error, please advise the sender immediately by
return email and then delete it from your system. Any unauthorised
distribution or copying of this transmission, or misuse or
wrongful disclosure of information contained in it, is strictly
prohibited. Shepway District Council cannot accept liability for
any statements made which are clearly the sender's own and not
expressly made on behalf of the council. All email to and from the
council may be monitored in accordance with the council’s
policies.

References

Visible links
1. http://www.ico.org.uk/
2. mailto:[Shepway District Council request email]
3. http://www.shepway.gov.uk/

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