Funding Strategy for Hoylake Golf Resort

ScarletPimpernel made this Freedom of Information request to Wirral Metropolitan Borough Council

This request has been closed to new correspondence. Contact us if you think it should be reopened.

The request was refused by Wirral Metropolitan Borough Council.

Dear Wirral Metropolitan Borough Council,

Last year, Wirral Metropolitan Borough Council entered into a Development Agreement with Nicklaus Joint Venture Group Limited relating to the Hoylake International Golf Resort.

The next stage in that process was for the developer (Nicklaus Joint Venture Group Limited) to submit to Wirral Council a "Funding Strategy" for the project.

On the evening of 16th October 2017 at a public meeting of Wirral Council's councillors, in answer to a question Cllr Phil Davies stated that the Funding Strategy had been received by Wirral Metropolitan Borough Council in the previous week.

This request is therefore for this Funding Strategy.

I consider this to be a request under the Environmental Information Regulations 2004 as some of what is in the Funding Strategy will be "environmental information" as defined by reg 2(1) of the Environmental Information Regulations 2004.

Moving to regulation 6 (1) of the Environmental Information Regulations 2004, I am requesting that the information be supplied in an electronic format such as a PDF file.

If this is not possible, I am happy to accept a hard copy through the post (if this is the case please inform me and I will supply an address).

I remind you of your duty under regulation 9(1) to provide advice and assistance to those who make EIR requests.

Yours faithfully,

John Brace

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

1 Attachment

Dear Mr Brace,

 

I refer to your email of 18 October, which contained the following request
for information:-

 

Dear Wirral Metropolitan Borough Council,

 

Last year, Wirral Metropolitan Borough Council entered into a Development
Agreement with Nicklaus Joint Venture Group Limited relating to the
Hoylake International Golf Resort.

 

The next stage in that process was for the developer (Nicklaus Joint
Venture Group Limited) to submit to Wirral Council a "Funding Strategy"
for the project.

 

On the evening of 16th October 2017 at a public meeting of Wirral
Council's councillors, in answer to a question Cllr Phil Davies stated
that the Funding Strategy had been received by Wirral Metropolitan Borough
Council in the previous week.

 

This request is therefore for this Funding Strategy.

 

I consider this to be a request under the Environmental Information
Regulations 2004 as some of what is in the Funding Strategy will be
"environmental information" as defined by reg 2(1) of the Environmental
Information Regulations 2004.

 

Moving to regulation 6 (1) of the Environmental Information Regulations
2004, I am requesting that the information be supplied in an electronic
format such as a PDF file.

 

If this is not possible, I am happy to accept a hard copy through the post
(if this is the case please inform me and I will supply an address).

 

I remind you of your duty under regulation 9(1) to provide advice and
assistance to those who make EIR requests.

 

Yours faithfully,

 

I consider that the information you have requested is environmental
information under the Environmental Information Regulations 2004, (“EIR”).
Regulation 2 (1) (c) of the EIR 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. Plans and activities
in connection with the Open Championship are likely to affect  the element
of land and come within the definition of environmental information.

 

The Council has a duty to make environmental information available on
request unless one or more of the exceptions in the Regulations apply. I
refer to your request for a copy of the Funding Strategy submitted to the
Council by the Nicklaus Joint Venture Group Limited.

 

I consider that the exception contained in Regulation 12 (5) (e) of the
EIR applies to 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’s
Office: “Confidentiality of commercial or industrial information
(regulation 12 (5) (e)0,201205`6 : Version:1.2.  I consider that the
requested information has the necessary quality of confidence. The
information is not trivial and is not in the public domain. I refer to
paragraph 38 of the ICO guidance:- “Legitimate economic interests could
relate to retaining or improving market position, ensuring that
competitors do not gain access to commercially valuable information,
protecting a commercial bargaining position in the context of existing or
future negotiations, avoiding commercially significant reputational
damage, or avoiding disclosures which would otherwise result in a loss of
revenue or income” I also refer to paragraph 46 of the guidance which
provides that “If it is a third party’s interests that are at stake, the
public authority should consult with third party unless it has prior
knowledge of their views”. The Council has previously consulted with the
relevant third party who has indicated that the Funding Strategy should
not be disclosed on the basis that it contains confidential and
commercially sensitive information which needs to be protected in existing
ongoing negotiations. Disclosure of the requested information would
adversely affect the legitimate economic interest of both the Nicklaus
Joint Venture Group Limited and the Council’s own legitimate economic
interest in respect of the existing negotiations. The case of Elmbridge
Borough Council v. Information Commissioner  (EA/2010/0106, 4 January 2011
that disclosure of the confidential information would have to adversely
affect a legitimate interest of the person the confidentiality is designed
to protect. The implementation guide for the Aarhus Convention gives the
following guidance on legitimate economic interest (Paragraph 36 of the
ICO guidance.) “Determine harm. Legitimate economic interest also implies
that the exception may be invoked only if disclosure would significantly
damage the interest in question and assist its competitors”. I consider
that disclosing the requested information would significantly damage the
interest in question and assist the competitors of Nicklaus Joint Venture
Group Limited

 

The exception contained in Regulation 12 (5) (e) of the EIR is subject to
the public interest test. I have had regard to paragraph 48 of the
guidance, which provides that “ Although public authorities should
consider the views of the third party, it is still the public authority’s
responsibility to decide whether or not the exception applies”.

 

 

Public Interest Test

 

Factors in favour of disclosing the requested  information

o The public interest in disclosure to promote transparency and
accountability of public authorities
o That public money is being used effectively

 

 

o Factors in favour of maintaining the exception
o there is an inherent public interest in maintaining commercial
confidence
o that disclosure would cause harm to the legitimate economic interests
of the third party and the Council.
o other organisations may be reluctant to bid for or enter into
arrangements with the Council if doing so means that confidential and
commercially sensitive information will be disclosed to the public
where disclosure would adversely affect the legitimate economic
interests of those organisations

 

I am satisfied that the public interest in maintaining the exception
outweighs the public interest in disclosing  part of the information
requested,.

 

I  am therefore refusing your request for information under Regulation 14
of the EIR, relying on the exception contained in Regulation 12 (5)(e) of
the EIR .You have the right to make representations under Regulation 11 of
the 2004 Regulations, which should be sent  to
[1][Wirral Borough Council request email] and your request will be allocated
for review.

 

If you are dissatisfied with this response to your request for
information, you also 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

Tel -0303 123 113

[2]https://ico.org.uk/global/contact-us/

 

Yours sincerely

 

Sent on behalf of

 

Rosemary Lyon,

Solicitor,

Law and Governance

Business Services

CH44 8ED 

 

 

[3]LGC Awards15_Winner_MIP

 

 

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References

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1. mailto:[Wirral Borough Council request email]
2. https://emea01.safelinks.protection.outl...

Dear Wirral Metropolitan Borough Council,

Please pass this on to the person who conducts Environmental Information Regulations reconsiderations.

I am writing to request a reconsideration of Wirral Metropolitan Borough Council's handling of my EIR request 'Funding Strategy for Hoylake Golf Resort'.

I agree with you that this request is for "environmental information" and therefore the Environmental Information Regulations 2004, ("EIR") applies.

I point out that the following factors in favour of disclosing the requested information have not been considered and ask for them to be considered at this reconsideration stage.

i) reg 5(1) of the EIR which refers to the presumption in favour of disclosing the information,

ii) the decision-makers in this matter are the Cabinet. The Cabinet are elected councillors answerable to the people of Wirral at election time. The issue of expenditure on Hoylake Golf Resort is one that there is disagreement between the political parties represented on Wirral Council.

iii) the Funding Strategy also includes the phasing of the project. A development in Machynys resulted in just the houses being built and not the resort, so release of this part of the Funding Strategy would reassure the public that something similar wouldn't happen here,

iv) in relation to the third reason given by Wirral Council in favour of maintaining the exception, the developer was the sole bidder for the Hoylake Golf Resort (therefore the argument that it could deter bidders or harm bidder's commercial position) is unsustainable,

v) As detailed in decision notice FER0672223, I think Wirral Council has as detailed in paragraph 64, "that the council has adopted a “blanket” approach to the application of the exception and has not had sufficient regard to the nature of the actual information."

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

Yours faithfully,

John Brace

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

Dear Mr. Brace,

Thank you for your recent email, please take the contents of this email as Council's response to your request for an internal review. The Council is aware of the presumption in favour of disclosure in relation to EIR information and this presumption is always considered when an initial response is given, hence the statement "......The Council has a duty to make environmental information available on request unless one or more of the exceptions in the Regulations apply....."

I have taken into consideration the points you have raised in your email but after reviewing your request and the original response you were given by Ms. Lyon, my review concludes that I concur with the original response supplied. I believe Ms. Lyon's response was a full and comprehensive reply, taking into consideration guidance from the ICO and there was a careful weighing up of the public interest factors. I do not intend to repeat the whole of the advice given in the original reply but have summarised my response, which mirrors that of the original.

I believe that the Council can rely on the exception contained within Regulation 12 (5) (e) of EIR. This exception allows that we may decide to 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.

Taking expert guidance from the ICO: “Confidentiality of commercial or industrial information (regulation 12 (5) (e)0,201205`6 : Version:1.2., I believe the information in question has the necessary quality of confidence. The original answer you received gave great detail in this respect, that the information is not trivial and is not in the public domain and again I do not intend to repeat the original advice.

The exception contained in Regulation 12 (5) (e) is subject to the public interest test and it is important to reiterate to you that after having regard to paragraph 48 of the guidance, which provides that “ Although public authorities should consider the views of the third party, it is still the public authority’s responsibility to decide whether or not the exception applies”; the Council has decided that the exception can be relied upon.

The Public Interest Test factors in favour of disclosing the requested information are exactly as outlined in the original response and I have not changed, added or taken away from these factors:-
•The public interest in disclosure to promote transparency and accountability of public authorities
•That public money is being used effectively

The Public Interest Test Factors in favour of maintaining the exception again are correctly specified in the original response and I do not believe I need to change them in any way:-
•there is an inherent public interest in maintaining commercial confidence
•that disclosure would cause harm to the legitimate economic interests of the third party and the Council.
•other organisations may be reluctant to bid for or enter into arrangements with the Council if doing so means that confidential and commercially sensitive information will be disclosed to the public where disclosure would adversely affect the legitimate economic interests of those organisations

I uphold the original decision to refuse to disclose the information and I am satisfied that the original answer given was robust and comprehensive. I believe the public interest in maintaining the exception outweighs the public interest in disclosure.
I do not agree with your point in relation to decision notice FER0672223. Each request the Council receives is treated as a unique request for information and I do not concur that the Council has adopted a blanket approach in applying the exception in this case.

If you are dissatisfied with this internal review then you have the right to complain to the ICO who can be contacted using the details here https://ico.org.uk/global/contact-us/
Yours sincerely

Jane Corrin
Records and Information Manager
Business Services - Digital
Wirral Council

Visit our website: www.wirral.gov.uk

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