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Is the legal basis flawed for refusing our FoI request?

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HARROGATE TRUST FOR WILDLIFE PROTECTION

Dear FoI Officer,

Is the legal basis flawed for refusing our FoI request?

Liz Sandell has helpfully provided the preplanning application advice, given in connection with a former garden nursery site and we have long had, the advice given in connection with Rockville House. However, a decision has been taken to refuse the advice given in connection with West Winds, which is between those two properties.

In connection with West Winds Liz Sandell states,

"Pre-application advice for 16/01104/PRE is exempted from disclosure under Regulation 12(5)(f) [Environmental Information Regulations 2004] – the disclosure of this information would adversely affect the interests of the person who provided the [advice]".

Anyone can find details of that law using this website:-
https://www.legislation.gov.uk/uksi/2004...

It appears to us, that R.12(5)(f) cannot not be read in isolation but must be seen in the context of other relevant parts of R.12.

What we cannot see, is whether the full context goes beyond R.12 and how it might be affected by decisions taken in the courts (case law) and any statutory or other guidance.

In view of the above, we write to request answers to the following questions:-

Question 1
What are the various ways in which the interests of planning staff "would" (not could) be adversely affected, when they give preplanning application advice?

Question 2
Is it agreed that the law states "would" be and not, could be, adversely affected and consequently, it must be possible to state exactly, what would happen if the requested document were to be disclosed?

Question 3
Is there a legal obligation under Freedom of Information legislation, administration law or other aspect of law, to let us know exactly what "would" happen, which "would" adversely affect the adviser, if the requested document were to be disclosed and if so, can that explanation be given?

Question 4
Regulation 12(5)(f) contains points numbered (i), (ii) and (ii) but there are only two points, because (ii) "and" (iii) must exist together, (iii) meaning that the adviser "has not consented to [the] disclosure". Consequently, is the refusal to disclose based on 12(5)(f)(i) or (ii) "and" (iii)?

Question 5
Would the local authority accept as lawful,
(a) one unreasonable refusal by one member of staff to give consent, when in exactly the same circumstances, any other member of staff could reasonably be expected to give consent? and
(b) an established pattern of refusals by one member of staff to give consents, when in exactly the same circumstances, other staff could reasonably be expected to give consents?

Question 6
Are we correct in concluding, that Regulation 12(1)(a)&(b) must be read together and that they mean that Regulation 12(5)(f) cannot alone be a reason to refuse the information request, because Regulation 12(5)(f) only applies if, "all the circumstances of the case" (and not some or most circumstances) require that the public interest can only be protected, by refusing to disclose the requested document?

Question 7
If the local authority has concluded that the public interest can only be protected, by not providing the requested document, how could public knowledge of the advice in that document, possibly harm the public interest?

Question 8
As Regulation 12(2) creates a "presumption in favour of disclosure", is that presumption not sufficient to disclose, in view of other questions posed here?

Question 9
Regulation 12(5) states that "a public authority may refuse to disclose information to the extent that its disclosure would adversely affect ...". Do the words, "to the extent", not mean legally justifiable points could be redacted, such as the removal of any personal information, (R.12(3)) and/or what "would adversely affect" (R.12(5)) - ?

Question 10
If there is case law, statutory guidance or other information which influenced or determined the refusal to provide the requested document, would you kindly provide that legal or guidance information, so the decision to refuse can be understood?

Yours faithfully,

John Barker.
Hon. Secretary.

Foi, Harrogate Borough Council

This is an automated response to confirm that your email has been
received, we will be in further contact with you shortly in connection
with your request.

 

Harrogate Borough Council

Freedom of Information

 

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Foi, Harrogate Borough Council

Dear Mr Barker

 

Regulation 12(5)(f) is an exception to disclosure within the Environmental
Information Regulations 2004 (‘EIR’) in its own right, although as you
rightly point out there must be some consideration of Reg 12(1), (2) and
(3). Regulation 12(5)(f) provides that a public authority may refuse to
disclose information to the extent that its disclosure would adversely
affect –

 

‘(f) the interests of the person who provided the information where that
person –

(i) was not under, and could not have been put under, any legal obligation
to supply it to that or any other public authority;

(ii) did not supply it in circumstances such that that or any other public
authority is entitled apart from these Regulations to

disclose it; and

(iii) has not consented to its disclosure;’

 

In effect there are 3 strands to the exception, however the Information
Tribunal in John Kuschnir v Information Commissioner and Shropshire
Council (EA/2011/0273, 25 April 2012) considered that the exception can be
broken down into the following five-stage test (which includes the public
interest test which applies to EIR exceptions:

 

• Would disclosure adversely affect the interests of the person who
provided the information to the public authority?

• Was the person under, or could they have been put under, any legal
obligation to supply the information to the public authority?

• Did the person supply the information in circumstances where the
recipient public authority, or any other public authority, was entitled to
disclose it apart from under the EIR?

• Has the person supplying the information consented to its disclosure?

• In all the circumstances, does the public interest in maintaining the
exception outweigh the public interest?

 

In this instance you are requesting disclosure of Pre-planning advice,
which by its nature would disclose the details of the pre-planning
application.

 

The council made contact with the agent of the PRE-applicant to take their
opinion on how disclosure would affect them, the agent confirmed to us
that their client considers the information to be commercially sensitive
and that it relates to a proposal for development on private land. They
consider that a disclosure into the public domain (which a disclosure
under EIR must be considered to be) would adversely affect their
interests. The council accepts their assertion on this matter.

 

Pre-planning advice is a service offered by the council to developers,
however it is not a statutory service. These discussions benefit both the

developer and the council in that the developer has an early steer as to
the issues which may become relevant when a formal application is
submitted. They also benefit the council in that it is able to gain early
oversight and provide advice on applications which may be submitted in the
future. Whether developers enter into such discussions and provide
information in support of this is therefore purely a result of whether the
developer decides to make use of the councils pre-planning advice service.
It is clear that the information in relation to the Pre-application and
the advice given is based on a voluntary flow of information, there is no
legal obligation in relation to this flow of information in the
Pre-application process.

 

The legislation which governs the planning application and enforcement
processes does not require the Local Planning Authority to disclose
Pre-application information. Therefore the council would not be entitled
to disclose this information in any other circumstance other than under
EIR.

 

As stated above the council contacted the agent of the per-applicant who
confirmed that their client does not consent to the disclosure of this
information.

 

With respect to the public interest test the council accepts that there
are always arguments for creating greater transparency on information
relating to a planning application which will ultimately have an effect
upon the environment. And that decisions and advice given by a public
authority should be held up for accountability and scrutiny. However in
this case the information relates to pre-planning application, there is no
guarantee that the development will go ahead, or that any subsequent
planning applications will not be materially different to the
pre-application. The transparency and scrutiny of any definitive planning
applications will be upheld during the statutory processes that must be
carried out in relation to planning applications. The council believes
that the public interest is best served by ensuring that the
pre-application retains its integrity and confidentiality where the
applicant informs the council that is their want. To do otherwise would
have a negative effect on the whole pre-application process by
discouraging such applicants from taking up the service, which in turn
could mean a negative effect on the public purse in dealing with increased
numbers of full planning applications which have not been through that
pre-process and are ultimately impermissible due to issues that could have
been addressed in the pre-process. The council therefore believe that the
public interest in maintaining the exception outweighs the public interest
in disclosing the information.

 

For the reasons above the council maintain the exception at Reg 12(5)(f)
in relation to the information you requested.

 

I hope you find the above explanation acceptable, and apologies that such
details was not provided in the original response you received, however as
detailed in Ms Sandell’s response to you, you now have the right to
request an internal review if you remain unsatisfied, please email
[1][Harrogate Borough Council request email] with a specific request for an internal review if
that is a process you would like to progress to. Following that if you
remain unsatisfied you will have the right to complain to the Information
Commissioner’s Office.

 

Regards

 

Rich Kemp

(Debt & Information Law)

Legal & Governance

Harrogate Borough Council

PO Box 787

Harrogate

HG1 9RW

 

tel: 01423 500600 (ext - 58602)

email:  [2][email address]

[3]www.harrogate.gov.uk

 

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HARROGATE TRUST FOR WILDLIFE PROTECTION

Dear Rich Kemp,

Thank you for answering directly and indirectly, some of our previous questions regarding the Local Planning Authority (LPA) and provision to the public, of pre-planning application advice given to property owners.

If what follows, should be redirected for an internal review, please forward this email to your relevant colleague/s.

Your explanation proves that we had not realised, the distinction between who or what has provided the information. That point is raised in our first question below.

For the benefit of clarity, we would welcome numbered answers to our specific questions, using the numbers given below.

Question 1
In terms of law on Freedom of Information, is it true to say, that there is distinction between information provided:-
(a) by or on behalf of a property owner to the LPA and
(b) by LPA staff to that property owner?

Question 2
Does the LPA accept, that each and every point provided by the property owner in this case, "would" be "commercially sensitive" and not could be?

Question 3
Is the LPA entirely sure, that each and every point which it made in the advice (information) given, would be "commercially sensitive" and not could be?

Question 4
Could the LPA (and indeed any other LPA) decide not to release details about any advice given about any properties, on the basis of being "commercially sensitive", e.g. because all planning permissions have commercial implications, in that they affect the value of the properties?

Question 5
Does the public have a right to know, what if anything was said, (a) by or on behalf of the informant landowner and (b) by one or more LPA staff, about protecting the interests of the adjacent public service bereavement project or would that also be classified as "commercially sensitive"?

Question 6
Did the LPA obtain prior consents, from the owners of the adjacent garden nursery and nearby Rockville House, before making public, the pre-application planning advice, given in connection with those two properties, not least because those also could be seen as "commercially sensitive"?

Question 7
We must ask again what is in our previous question numbered 9 and that is, whether redacted information could be provided, e.g. by removing any personal information, (R.12(3)) and/or what "would adversely affect" (R.12(5)) and not could adversely affect?

Question 8
It is stated that the service provided by the LPA., "is not a statutory service". However, it is a service provided by a statutory organisation. Does the explanation given to us, mean that the LPA and Harrogate Borough Council as a whole, are sure that in terms of the law on Freedom of Information requests:-
(a) information must only be given when directly connected with their statutory duties?;
(b) there is no legal obligation to give information, when it is only about discretionary powers to provide a service, there being no legal duty to provide that service?

Yours sincerely,

John Barker.

Foi, Harrogate Borough Council

Dear Mr Barker

 

I write to confirm that your request for an internal review was received
on 29/04/2019. The Council will endeavour to complete the review within 20
working days. The review will be carried out by a senior Council Officer
who has not been involved with your original request. You will be informed
of the decision of the review as soon as possible once the review has been
completed. If you remain unsatisfied after the findings of the review you
then have the right to complain to the Information Commissioners Office,
details will be provided in the review response.

 

Regards

 

Rich Kemp

(Debt & Information Law)

Legal & Governance

Harrogate Borough Council

PO Box 787

Harrogate

HG1 9RW

 

tel: 01423 500600 (ext - 58602)

email:  [1][email address]

[2]www.harrogate.gov.uk

 

 

 

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Rachel Bowles, Harrogate Borough Council

1 Attachment

Mr Barker

 

Please find attached my response to your request for an internal review.

 

Regards,

 

Rachel Bowles

Director of Corporate Affairs

Harrogate Borough Council

PO Box 787

Harrogate

HG1 9RW

 

Tel: 01423 500600 ext 56705

Mob:  07525988364

Email:  [1][email address]

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

 

 

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EM Agnew left an annotation ()

Following an internal review, Harrogate Borough Council stands by its decision to refuse to provide the requested information. That means, it has decided not to reveal whether our charity's work, was or was not taken into consideration, when it gave advice to an adjacent landowner, about lodging a planning application to build 4 houses on a property which currently has one house. The only option now is to ask the Information Commissioner, if our charity is not allowed to know what if anything was formally stated about or work and our needs .

Dear Rachel Bowles,

Thank you for your response.

The long an short of our concern, is that Harrogate Borough Council (HBC) is saying, one or more aspects of law, prevent our charity from knowing the following:-

(1) whether an adjacent landowner provided information about our bereavement work, so HBC staff would be able to clarify the nature of that work, in order to discover whether that could or should influence the pre-planning application advice to be given;

(2) whether HBC staff took our bereavement work into consideration, based on HBC's own records, without needing to be given information by any adjacent landowners;

(3) what if anything, HBC said about our bereavement work, in the advice which was given;

(4) how it was possible to provide us with details of advice given by HBC to two other adjacent property owners, (Rockville House and a garden nursery), when the circumstances are ostensibly identical, in that all are about building houses on the same or very similar scale.

HBC is also saying it is not possible to provide the requested information, by redacting other details which the law prevents us from knowing.

HBC does redact information in other circumstances but is saying the law prevents it from doing so in connection with our Freedom of Information request - which seems to have been rejected as a FoI request.

Being a charity, our work must be done and is being done in the public interest and the primary duty of our courts, is to protect the public interest.

Consequently, even if HBC's response is technically correct, it does seem to be a breach of one or more very basic legal principles and may, therefore, indicate an anomaly in the law.

In view of the above, please inform your Chief Executive Wallace Sampson, Leader of the Council, head of planning and councillors on your planning committee, why we have no option other than to refer our FoI request, to the Information Commissioner.

Yours sincerely,

John Barker.
Hon. Secretary.
Harrogate Trust for Wildlife Protection.

Rachel Bowles, Harrogate Borough Council



I am away from the office until Monday 3 June 2019.

I will  have limited access to my emails.

If you would like to speak to someone in my absence, please contact my PA:

Maxine Smith, 01423 500600 x58187, [1][email address]

 

 

Rachel Bowles

Director Corporate Affairs

Harrogate Borough Council

Council Offices

Crescent Gardens

Harrogate

HG1 2SG

Telephone: 01423 556705

[mobile number]

Email: [2][email address]

Website: [3]WWW.Harrogate.Gov.UK

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Rachel Bowles, Harrogate Borough Council

Thank you for your response. I confirm receipt.

Rachel

Rachel Bowles
Director of Corporate Affairs
Harrogate Borough Council
PO Box 787
Harrogate
HG1 9RW

Tel: 01423 500600 ext 56705
Mob:  07525988364
Email:  [email address]
Website: www.harrogate.gov.uk

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EM Agnew left an annotation ()

Success was not obtained with an internal review.

Consequently, the help of the Information Commissioner proved successful.

See other FoI requests about the operational standards within Harrogate Borough Council, e.g. "Is Harrogate Borough Council knowingly deceiving council tax payers - ??" (10 Nov 2019) and "Preventing wildlife destruction by raising standards in ecology reports" (16 August and see 12 November 2019 conclusion).

FAO LPA staff,

This FoI request will be marked on this website for a successful outcome.

However, it was achieved by a decision of the Information Commissioner.

We have now received the full text of the requested planning advice which had been given.

This FoI request, therefore, provides clarification on when Harrogate Borough Council and other Local Planning Authorities must provide details of advice given, prior to the receipt of planning applications.

John Barker
Hon. Secretary
Harrogate Trust for Wildlife Protection

Rachel Bowles, Harrogate Borough Council

Many thanks for your email Mr Barker, I have forwarded to the relevant people for action.

Kind regards

Rachel

Rachel Bowles
Director of Corporate Affairs
Harrogate Borough Council
PO Box 787
Harrogate
HG1 9RW

Tel: 01423 500600 ext 56705
Mob:  07525988364
Email:  [email address]
Website: www.harrogate.gov.uk

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We don't know whether the most recent response to this request contains information or not – if you are EM Agnew please sign in and let everyone know.