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.

Is the public cemetery development proposal unlawful - ??

We're waiting for EM Agnew to read a recent response and update the status.

Dear Tunbridge Wells Borough Council,

1. Without giving their names, please provide a full list, of the exact job titles for those members of staff, who have explicit responsibilities for maintaining standards in the Council's public cemeteries.

2. Does the Chief Executive conclude, that basic standards are not being met in a significant part of the Benhall Mill Road Cemetery, as illustrated on the Kentlive website, in a photograph provided by June Bridgeman?

3. Please provide full references to laws and/or legal precedents which make legally valid, (a) the legal notice displayed at the above cemetery from the 28 March 2019 and (b) the proposal in that notice to, "develop the land for residential dwellings and a storage depot".

4. Which part or parts of the cemetery referred to in 3 above, were once owned by a religious organisation and if that has never been the case, is the Council a religious organisation?

NOTES

Re. 1, presumably, the Chief Executive has primary responsibility, followed by a small number of line managers.

Re. 2, this is the website referred to:-
https://www.kentlive.news/news/kent-news...

Re. 3, the Act of 1981 referred to in that notice, gives no explicit indication, that the proposal could be lawful under that Act. If so, the legal notice appears to have been legally invalid (ultra vires).

Re. 4, the legal notice displayed at the above cemetery from the 28 March 2019 mentioned nothing other than the Disused Burial Grounds (Amendment) Act 1981. The relevance of that Act, appears limited to disused burial grounds owned or once owned by religious organisations.

Yours faithfully,

John Bradfield.

info (TWBC), Tunbridge Wells Borough Council

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This e-mail is confidential and intended solely for the use of the individual to whom it is addressed. Any views or opinions presented are solely those of the author and do not necessarily represent those of Tunbridge Wells Borough Council. If you are not the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying of this e-mail is strictly prohibited.

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FOI (TWBC), Tunbridge Wells Borough Council

3 Attachments

Dear Mr Bradfield,

Acknowledgement

Our Ref: FOI F08041

Thank you for your recent email which we are handling in accordance with
the Freedom of Information Act 2000. I acknowledge receipt and confirm
that we will respond within 20 working days from the date of receipt; by
no later than the 11^th July 2019

In the meantime, if you have any further queries regarding our Freedom of
Information procedures please contact the team on 01892 554077 or via
e-mail to [1][email address].

Yours sincerely

 

 

 

Jessica Cox LLB

Corporate Governance Assistant

 

T: 01892 554077 ext: 4077

E: [2][email address]

Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS

 

[3]www.tunbridgewells.gov.uk   

 

 

 

This e-mail is confidential and intended solely for the use of the individual to whom it is addressed. Any views or opinions presented are solely those of the author and do not necessarily represent those of Tunbridge Wells Borough Council. If you are not the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying of this e-mail is strictly prohibited.

If you have received this e-mail in error please notify Tunbridge Wells Borough Council on telephone +44 (0)1892 526121 or e-mail to [Tunbridge Wells Borough Council request email].

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FOI (TWBC), Tunbridge Wells Borough Council

3 Attachments

Dear Mr Bradfield,

Re: FOI F08041

Thank you for your Freedom of Information request.

Please find below the response to your recent request. The information has
been provided by our Property Team.

Your request:

1. Without giving their names, please provide a full list, of the exact
job titles for those members of staff, who have explicit responsibilities
for maintaining standards in the Council's public cemeteries.

 

Chief Executive

Head of Housing, Health and Environment

Director of Change and Communities

Contract Services Manager

Registrar for the Crematorium

 

 

2.  Does the Chief Executive conclude, that basic standards are not being
met in a significant part of the Benhall Mill Road Cemetery, as
illustrated on the Kentlive website, in a photograph provided by June
Bridgeman?

 

Tunbridge Wells Borough Council does not hold the information requested.
The purpose of the Freedom of Information Act 2000 is to allow individuals
access to all ‘recorded’ information’.  The guidance from the Information
Commissioner’s Office advises that the Act does not cover requests for
interpretations, to obtain answers from officers to questions raised or to
create new information.  

 

3.  Please provide full references to laws and/or legal precedents which
make legally valid, (a) the legal notice displayed at the above cemetery
from the 28 March 2019 and (b) the proposal in that notice to, "develop
the land for residential dwellings and a storage depot".

 

(a) I can confirm that the public notice refers to which act the
application is made under. The application has been made in the form
approved by the Ministry of Justice.

(b) Please refine and clarify your request.

 

 

4.  Which part or parts of the cemetery referred to in 3 above, were once
owned by a religious organisation and if that has never been the case, is
the Council a religious organisation?

 

I can confirm that the historic ownership of the land is not in the
council’s possession. Enquiries should be made of HM Land Registry

 

S25 of the burials act 1857 creates a criminal offence for a body or any
human remains which have been interred in a place of burial to be removed
unless:

(i) if the land is consecrated (anglican), a faculty is granted by the
consistory court (rochester diocese here); or

(ii) if the land is not consecrated, a licence is obtained from the
secretary of state (ministry of justice).

 

The land is question is not consecrated and, as such, a licence is being
obtained from the ministry of justice.

 

I hope this information is helpful and if there is anything further I can
help with please contact me on 01892 554077 or via email to
[1][email address

If you are dissatisfied with the information provided or the way in which
we have dealt with your request, you can request a review.   Please write
to Patricia Narebor, Head of Legal Partnership and Monitoring Officer at
the Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS or via e-mail to
[2][email address]  requesting a review of the
decision.

We will aim to deal with your request within 20 working days. If you
remain dissatisfied following our review, you can then appeal to the
Information Commissioner.

 

Yours sincerely

 

 

 

Katherine Reynolds

Corporate Governance Assistant

 

T: 01892 554478

E: [3][email address]

Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS

 

[4]www.tunbridgewells.gov.uk   

 

This e-mail is confidential and intended solely for the use of the individual to whom it is addressed. Any views or opinions presented are solely those of the author and do not necessarily represent those of Tunbridge Wells Borough Council. If you are not the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying of this e-mail is strictly prohibited.

If you have received this e-mail in error please notify Tunbridge Wells Borough Council on telephone +44 (0)1892 526121 or e-mail to [Tunbridge Wells Borough Council request email].

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4. http://www.tunbridgewells.gov.uk/

Dear Katherine Reynolds,

Thank you for responding on behalf of your Council.

In view of the seriousness of legal duties and criminal law, please confirm that none of the listed staff have written anything about standards.

If my understanding is correct the Chief Executive, Head of Housing, Health and Environment, Director of Change and Communities, Contract Services Manager and Registrar for the Crematorium, could all be in breach of criminal law and each could be fined up £200, if standards do not reach the required minimum, in all parts of the cemetery.

That aspect of criminal law, backs up the legal duty which states that they "shall keep the cemetery in good order and repair, together with all buildings, walls and fences".

In view of the above, it will undoubtedly astonish local council tax payers, if staff have not recorded anything about the required standards and have not responded internally and in writing, to the evidence in June Bridgeman's photograph on the Kentlive website.

Thank you for confirming, that for its proposal to build houses within the cemetery, the Council does not rely on any law, other than the Disused Burial Grounds (Amendment) Act 1981. I must assume from your reply, that there are no legal precedents arising from that one Act, on which the Council relies.

I will gladly "refine and clarify" this point, if you kindly let me know what may be unclear or uncertain about my question.

I fully understand why the Council relies on the wording of the application form provided by the Ministry of Justice. Consequently, it has been asked to investigate whether its form is legally invalid and that it would be a criminal offence, to continue with the proposal in the legal notice.

My understanding is, that only a religious building could be erected under the Disused Burial Grounds Acts and only by a religious organisation. The one and only exception is when the land has previously been owned by a religious organisation. That is ruled out by the helpful information which you have provided but in any case, the proposal is not for a religious building or buildings.

If it sounds strange, that only religious buildings can be erected, simply think about why secular landowners with land which has never been owned by a religious organisation, are not mentioned in the 1981 Act. Your own Council fits that secular definition if the details which you have provided, are accurate.

Thank you for the information about exhumation licences. Please inform your legal colleagues or whoever provided you with that information, that licences are not relevant - see S.2(7) in the 1981 Act.

If licences were to be used to clear all graves, the 1981 Act would still apply, to protect the area from development.

Yours sincerely,

John Bradfield.

FOI (TWBC), Tunbridge Wells Borough Council

3 Attachments

Dear Mr Bradfield,

 

In response to your email please see the Council’s response below to the
questions you have raised. 

 

Where you have provided your view, the Council has not provided a
response.  The purpose of the Freedom of Information Act 2000 is to allow
individuals access to all ‘recorded’ information’.  The guidance from the
Information Commissioner’s Office advises that the Act does not cover
requests for interpretations, to obtain answers from officers to questions
raised or to create new information.  

 

As you have been advised previously, if you remain dissatisfied with the
response to your Freedom of Information request  you can request a
review.   Please write to Patricia Narebor, Head of Legal Partnership and
Monitoring Officer at the Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS
or via e-mail to requesting a review of the decision.

 

In view of the seriousness of legal duties and criminal law, please
confirm that none of the listed staff have written anything about
standards.

 

We are unclear regarding the information you are requesting.  

 

If my understanding is correct the Chief Executive, Head of Housing,
Health and Environment, Director of Change and Communities, Contract
Services Manager and Registrar for the Crematorium, could all be in breach
of criminal law and each could be fined up £200, if standards do not reach
the required minimum, in all parts of the cemetery.

 

That aspect of criminal law, backs up the legal duty which states that
they "shall keep the cemetery in good order and repair, together with all
buildings, walls and fences".

 

In view of the above, it will undoubtedly astonish local council tax
payers, if staff have not recorded anything about the required standards
and have not responded internally and in writing, to the evidence in June
Bridgeman's  photograph on the Kentlive website.

 

Thank you for confirming, that for its proposal to build houses within the
cemetery, the Council does not rely on any law, other than the Disused
Burial Grounds (Amendment) Act 1981. I must assume from your reply, that
there are no legal precedents arising from that one Act, on which the
Council relies. 

 

The Council would like to clarify that there has not been a confirmation
that this is the case. The application to develop the cemetery depot (not
the main cemetery) is to be made.

 

I will gladly "refine and clarify" this point, if you kindly let me know
what may be unclear or uncertain about my question.

 

The Freedom of Information process relates to information that is
unavailable within the public domain. Obtaining planning permission is a
process on which information can be obtained within the public domain. The
same principles apply to Tunbridge Wells Borough Council acting as
Landowner which it is doing here (rather than the Local Planning
Authority).

 

I fully understand why the Council relies on the wording of the
application form provided by the Ministry of Justice. Consequently, it has
been asked to investigate whether its form is legally invalid and that it
would be a criminal offence, to continue with the proposal in the legal
notice.

 

My understanding is, that only a religious building could be erected under
the Disused Burial Grounds Acts and only by a religious organisation. The
one and only exception is when the land has previously been owned by a
religious organisation. That is ruled out by the helpful information which
you have provided but in any case, the proposal is not for a religious
building or buildings.

 

If it sounds strange, that only religious buildings can be erected, simply
think about why secular landowners with land which has never been owned by
a religious organisation, are not mentioned in the 1981 Act. Your own
Council fits that secular definition if the details which you have
provided, are accurate.

 

Thank you for the information about exhumation licences. Please inform
your legal colleagues or whoever provided you with that information, that
licences are not relevant - see S.2(7) in the 1981 Act.

 

If licences were to be used to clear all graves, the 1981 Act would still
apply, to protect the area from development.

 

Yours sincerely

 

 

 

FOI Team

 

T: 01892 554077  

E: [1][email address]

Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS

 

[2]www.tunbridgewells.gov.uk   

 

 

 

This e-mail is confidential and intended solely for the use of the individual to whom it is addressed. Any views or opinions presented are solely those of the author and do not necessarily represent those of Tunbridge Wells Borough Council. If you are not the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying of this e-mail is strictly prohibited.

If you have received this e-mail in error please notify Tunbridge Wells Borough Council on telephone +44 (0)1892 526121 or e-mail to [Tunbridge Wells Borough Council request email].

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Dear Jessica Cox, Katherine Reynolds et al,

Thank you for the information provided.

In view of what follows, I must request a copy of the most recent internal recorded information, proving whether or not Tunbridge Wells Borough Council is managing to the legal standards previously mentioned, the "significant part" of the public cemetery referred to in the legal notice dated the 28 March 2019. That "significant part" includes the area in the photograph previously mentioned. Recorded information might include other photographs, showing the true state of the whole of that "significant part" of the cemetery.

I previously cited the explicit requirements of law on standards. Thank you for making clear, that the following could be prosecuted and fined up to £200, if any parts of the cemetery do not meet those standards:-

Chief Executive
Head of Housing, Health and Environment
Director of Change and Communities
Contract Services Manager
Registrar for the Crematorium

In view of their legal duties and that local government organisations overflow with written information, it is reasonable to assume that there must be internal written records, which are not in the public domain, proving whether or not minimum standards are being achieved.

It seems plainly impossible, that none of the staff have ever written anything about the state of the area, prior to displaying the legal notice on the 28 March 2019.

In addition to the possibility of at least five members of staff each being fined up to £200, it appears that Tunbridge Wells has proposals to go further and breach the Disused Burials Grounds Acts 1884 and 1981. If that were to happen, that would be a criminal offence.

I sympathise with the fact, that the application form provided by the Ministry of Justice keeps referring to "development", perhaps giving the impression that any form of "development" could be lawful. I have sought clarification on that matter from the Ministry of Justice. However, your legal colleagues are more than capable of checking exactly what the 1884 and 1981 Acts do and do not allow.

The Home Office had responsibility for burial law until the Ministry of Justice took over, in or around 2007. I have provided the Ministry of Justice with evidence, that an urban district council referred a case to the Home Office. The Chief Constable, a Police Inspector and Director of Public Prosecutions became involved and the prosecuting solicitors were instructed by the Solicitor to the Treasury.

The offenders thought that planning permission allowed the destruction of the graves and the development which they had started. They were found guilty, ordered to demolish what they had built, fined and imprisoned.

The judge expressed profound concern that the law was not understood and said he was determined to change that. He referred to an apparent lack of awareness of an earlier case, which had "shocked" the highest judge in the land, the Lord Chief Justice.

In the case of a breach of the said Acts in London, it appears that a London borough would be the prosecuting authority. It may be unclear, as to what would happen when the borough itself is the offender but in the case of your own local authority, it does appear that the Crown Prosecution Service would have responsibility to intervene.

You refer to the planning application process but to the best of my knowledge, that has no relevance to burial legislation. Planning permissions did and may still end with a warning, that they do not override other aspects of law, even down to the level of restrictive covenants.

Please take great care to ensure that the information which you are kindly providing, does not mislead your own staff, councillors and the public.

You state that, "The application to develop the cemetery depot (not the main cemetery) is to be made". That statement is in danger of giving the misleading impression, that the application to build houses has no relevance to burial law, despite the fact that the 28 March 2019 legal notice refers to the removal of graves. Even if no graves existed the Disused Burial Grounds Acts would still protect a place once designated for burials.

Again, please take great care not to unintentionally mislead, with the information which you are kindly providing.

As your cemetery is owned by a non-religious organisation, which has no knowledge of it ever having been owned by a religious organisation, I cannot see how it could be possible to rely on the 1981 Act to build anything - not even a religious building.

Properties which have always been in secular ownership are not mentioned in that Act, ipso facto it seems certain, that it has no relevance to the Benhall Mill Road cemetery.

As previously mentioned, the 28 March 2019 legal notice appears to be legally invalid (ultra vires).

Yours sincerely,

John Bradfield.

FOI (TWBC), Tunbridge Wells Borough Council

3 Attachments

Dear Mr Bradfield,

 

Thank you for your recent email regarding the response to your Freedom of
Information request.

 

I can confirm that your additional query has been passed to the Council’s
legal team, unfortunately, the member of staff dealing with this matter is
currently on leave until Tuesday 27th August 2019.

 

I can confirm that a response will be provided on their return.

 

Yours sincerely

 

 

 

Jessica Cox LLB

Corporate Governance Assistant

 

T: 01892 554077 ext: 4077

E: [1][email address]

Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS

 

[2]www.tunbridgewells.gov.uk   

 

 

 

This e-mail is confidential and intended solely for the use of the individual to whom it is addressed. Any views or opinions presented are solely those of the author and do not necessarily represent those of Tunbridge Wells Borough Council. If you are not the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying of this e-mail is strictly prohibited.

If you have received this e-mail in error please notify Tunbridge Wells Borough Council on telephone +44 (0)1892 526121 or e-mail to [Tunbridge Wells Borough Council request email].

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Dear Jessica Cox, Katherine Reynolds et al,

The Ministry of Justice (MoJ) has stated in response to a Freedom of Information request by Teresa Evans, that it has no powers and no role to play, in connection with the 1981 Act, when the burial place is not owned by a religious organisation and has never been owned by one.

Teresa states:- "Your letter corrects the previous response to my FoI request, by making clear that, "The MoJ only exercises powers in connection with burial grounds that are or have been owned by a church or other religious body"."

That is exactly what I stated at the outset - see point 4 above at the start of my FoI request.

Teresa's FoI request also mentions the MoJ's misleading application form in connection with the 1981 Act.

You will find those and other important points in Teresa's response to the MoJ on the 10 September 2019:-
https://www.whatdotheyknow.com/request/g...

Yours sincerely,

John Bradfield.

Dear Jessica Cox et al,

Please respond.

Yours sincerely,

John Bradfield.

Dear Jessica Cox et al,

Please respond.
as requested on the 16th November

Yours sincerely,

John Bradfield.

FOI (TWBC), Tunbridge Wells Borough Council

Dear Mr Bradfield,

Thank you for your recent emails regarding the response to your Freedom of Information request.

Please accept our apologies for the delay in responding to your request for clarification. We are currently waiting for further information from the services and will be in contact with you shortly.

Yours sincerely

Katherine Reynolds
Corporate Governance Assistant

T: 01892 554478
E: [email address]
Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS

www.tunbridgewells.gov.uk   

This e-mail is confidential and intended solely for the use of the individual to whom it is addressed. Any views or opinions presented are solely those of the author and do not necessarily represent those of Tunbridge Wells Borough Council. If you are not the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying of this e-mail is strictly prohibited.

If you have received this e-mail in error please notify Tunbridge Wells Borough Council on telephone +44 (0)1892 526121 or e-mail to [email address].

FOI (TWBC), Tunbridge Wells Borough Council

4 Attachments

Dear Mr Bradfield,

Re: FOI F08041

Further to your additional request for information below:

 

In view of what follows, I must request a copy of the most recent internal
recorded information, proving whether or not Tunbridge Wells Borough
Council is managing to the legal standards previously mentioned, the
"significant part" of the public cemetery referred to in the legal notice
dated the 28 March 2019. That "significant part" includes the area in the
photograph previously mentioned. Recorded information might include other
photographs, showing the true state of the whole of that "significant
part" of the cemetery.

 

Please see attached The Cemetery Management Plan and service specification
which sets out the standards to which we maintain the Cemetery. We have
also included a sample of the regular inspections we carry out.  This is
subject to an exemption under the Freedom of Information Act because it
contains personal names.  We consider that personal names constitutes
personal data as set out in the Data Protection Act 2018 and is exempt
from disclosure under Section 40 (2) ‘Data Protection’ of the Freedom of
Information Act (2000).

 

Section 40(2) of the FOIA states that information is exempt from
disclosure if it constitutes the personal data of a third party and its
disclosure under the FOIA would breach any of the data protection
principles under the Data Protection Act. We consider that the data
protection principle which would be contravened by disclosing the
information would be the first data principle that ‘personal data shall be
processed lawfully, fairly and in a transparent manner in relation to the
data subject’.

 

In assessing whether disclosure of the information would be lawful, we
have to consider whether processing personal data in response to your
request meets a condition under Article 6 of the General Data Protection
Regulations. We consider that the most appropriate condition would be
‘processing is necessary for the purposes of the legitimate interests
pursued by the controller or by a third party except where such interests
are overridden by the interests or fundamental rights and freedoms of the
data subject which require protection of personal data’.

 

The Council recognises that you have a legitimate interest in the
disclosure of the information, however we consider that disclosure of the
information into the public domain is not necessary to meet your
legitimate interest and we also do not consider it is in the wider public
interest. We consider that disclosure of the information would be unfair
to the third parties and would breach the first data protection principle.
In assessing fairness, we have considered the reasonable expectations of
the third parties, the nature of those expectations and the consequences
of disclosure. If we were to disclose this information we would be
processing the data in a way which was not intended by the third parties
concerned.

 

As we have advised previously, where you have provided your view the
Council has not provided a response.  The purpose of the Freedom of
Information Act 2000 is to allow individuals access to all ‘recorded’
information.  The guidance from the Information Commissioner’s Office
advises that the Act does not cover requests for interpretations, to
obtain answers from officers to questions raised or to create new
information

 

If you are dissatisfied with the information provided or the way in which
we have dealt with your request, you can request a review.   Please write
to Patricia Narebor, Head of Legal Partnership and Monitoring Officer at
the Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS or via e-mail to
[1][email address]  requesting a review of the
decision.

We will aim to deal with your request within 20 working days. If you
remain dissatisfied following our review, you can then appeal to the
Information Commissioner.

 

 

Esther Scarborough

Corporate Governance Assistant

 

T: 01892 554275

E: [2][email address]

Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS

[3]www.tunbridgewells.gov.uk         

 

[4]cid:image001.png@01D5C64C.36C60960

 

This e-mail is confidential and intended solely for the use of the individual to whom it is addressed. Any views or opinions presented are solely those of the author and do not necessarily represent those of Tunbridge Wells Borough Council. If you are not the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying of this e-mail is strictly prohibited.

If you have received this e-mail in error please notify Tunbridge Wells Borough Council on telephone +44 (0)1892 526121 or e-mail to [email address].

References

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2. mailto:[email address]
3. http://www.tunbridgewells.gov.uk/

Dear Jessica Cox, Katherine Reynolds, Esther Scarborough et al,

Thank you for the interesting information, containing some very commendable news and plans.

In view of what follows, I am sure you will understand why I must now request an internal review.

Also, as the development plan which you kindly attached is being "reviewed on a regular basis with the progress against the action plan reviewed quarterly", I would welcome evidence that the issues which I have raised, have been recorded in the ongoing reviews since June 2019.

I need to mention that I still cannot find anything which provides:-
(1) "full references to laws and/or legal precedents which make legally valid,
(a) the legal notice displayed at the above cemetery from the 28 March 2019 and
(b) the proposal in that notice to, "develop the land for residential dwellings and a storage depot";
(2) any factually recorded information which proves that the area of the cemetery in question, is being managed as legally required.

Regarding (1) and as previously mentioned, the Ministry of Justice has since stated in effect, that it does not have legal authority to authorise the proposal in the legal notice.

Regarding (2), it does now look certain that the following are in breach of criminal law and each could be fined up to £200:-
Chief Executive;
Head of Housing, Health and Environment;
Director of Change and Communities;
Contract Services Manager;
Registrar for the Crematorium.

Regarding one of your last attachments it is stated, "The Contractor must provide a sufficient quantity of freshly ground lime and must liberally apply such lime to the excavated soil, exhumed coffin or grave as directed by the Cemetery & Crematorium Registrar". For some decades, the Home Office had been specifying the use of quicklime (calcium oxide or freshly ground lime) for exhumations. The Ministry of Justice may have done the same, when it took over responsibility. However, exhumations are no more of a health risk than gardening, according to former adviser to the Home Office, forensic pathologist Prof. Michael Green. He assisted with my research on the subject and said (a) it is of no more use than holy water and (b) it is a danger to health and safety. Even builders' lime (calcium hydroxied or hydrated lime) is caustic. Requiring the use of something which is no more useful than holy water but places staff at serious risk, must in all probability be a breach of health and safety law.

Your attachment headed 'Tunbridge Wells Cemetery Management and Development Plan' and issued 04 April 2018, makes no mention of the proposed development in the legal notice referred to above. That development plan refers to "legal aspects" and "legal issues" on pages 10 and 27 but does not reveal to councillors and local residents, the crucial issues in my Freedom of Information request. As stated above, I would welcome evidence that the issues which I have raised, have been recorded in quarterly reviews.

Yours sincerely,

John Bradfield.

FOI (TWBC), Tunbridge Wells Borough Council

2 Attachments

Dear Mr Bradfield,

Acknowledgement

Our Ref: FOI F08041 Review

Thank you for your recent email which our Legal Team are handling in
accordance with the Freedom of Information Act 2000. I acknowledge receipt
and confirm that our Legal Team will respond within 20 working days from
the date of receipt; by no later than the 16^th March 2020

Yours sincerely

 

 

 

FOI Team

 

T: 01892 554077

E: [1][email address]

Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS

 

[2]www.tunbridgewells.gov.uk   

 

show quoted sections

FOI (TWBC), Tunbridge Wells Borough Council

2 Attachments

Dear Mr Bradfield,  

 

We are writing to you about your request for internal review of your
Freedom of Information Request (FOI F08041). Please accept our apologies
for the delay in responding to your request for review.

The Legal team are currently still investigating the internal review and
we will provide an update shortly.

In the meantime, if you have any further queries regarding our Freedom of
Information procedures please contact the team on 01892 554077 or via
e-mail to [1][Tunbridge Wells Borough Council request email].

 

Yours sincerely

 

 

 

FOI Team

 

T: 01892 554077

E: [2][email address]

Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS

 

[3]www.tunbridgewells.gov.uk   

This e-mail is confidential and intended solely for the use of the individual to whom it is addressed. Any views or opinions presented are solely those of the author and do not necessarily represent those of Tunbridge Wells Borough Council. If you are not the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying of this e-mail is strictly prohibited.

If you have received this e-mail in error please notify Tunbridge Wells Borough Council on telephone +44 (0)1892 526121 or e-mail to [email address].

References

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Keith Trowell,

1 Attachment

Dear Mr Bradfield,

 

I refer to your e-mail of 17^th February 2020 in which you requested a
review of the Council’s handling of your FOI request. This has been passed
to me and I must first apologise for the delay in dealing with your
request.

 

Your request for a review stated :

 

“Thank you for the interesting information, containing some very
commendable news and plans.

 

In view of what follows, I am sure you will understand why I must now
request an internal review.

 

Also, as the development plan which you kindly attached is being "reviewed
on a regular basis with the progress against the action plan reviewed
quarterly", I would welcome evidence that the issues which I have raised,
have been recorded in the ongoing reviews since June 2019.

 

I need to mention that I still cannot find anything which provides:-

(1) "full references to laws and/or legal precedents which make legally
valid,

(a) the legal notice displayed at the above cemetery from the 28 March
2019 and

(b) the proposal in that notice to, "develop the land for residential
dwellings and a storage depot";

(2) any factually recorded information which proves that the area of the
cemetery in question, is being managed as legally required.

 

Regarding (1) and as previously mentioned, the Ministry of Justice has
since stated in effect, that it does not have legal authority to authorise
the proposal in the legal notice.

 

Regarding (2), it does now look certain that the following are in breach
of criminal law and each could be fined up to £200:- Chief Executive; Head
of Housing, Health and Environment; Director of Change and Communities;
Contract Services Manager; Registrar for the Crematorium.

 

Regarding one of your last attachments it is stated, "The Contractor must
provide a sufficient quantity of freshly ground lime and must liberally
apply such lime to the excavated soil, exhumed coffin or grave as directed
by the Cemetery & Crematorium Registrar". For some decades, the Home
Office had been specifying the use of quicklime (calcium oxide or freshly
ground lime) for exhumations. The Ministry of Justice may have done the
same, when it took over responsibility. However, exhumations are no more
of a health risk than gardening, according to former adviser to the Home
Office, forensic pathologist Prof. Michael Green. He assisted with my
research on the subject and said (a) it is of no more use than holy water
and (b) it is a danger to health and safety. Even builders' lime (calcium
hydroxied or hydrated lime) is caustic. Requiring the use of something
which is no more useful than holy water but places staff at serious risk,
must in all probability be a breach of health and safety law.

 

Your attachment headed 'Tunbridge Wells Cemetery Management and
Development Plan' and issued 04 April 2018, makes no mention of the
proposed development in the legal notice referred to above. That
development plan refers to "legal aspects" and "legal issues" on pages 10
and 27 but does not reveal to councillors and local residents, the crucial
issues in my Freedom of Information request. As stated above, I would
welcome evidence that the issues which I have raised, have been recorded
in quarterly reviews.

 

Yours sincerely,”

 

Your initial request for information asked :

 

“1. Without giving their names, please provide a full list, of the exact
job titles for those members of staff, who have explicit responsibilities
for maintaining standards in the Council's public cemeteries.

 

2.  Does the Chief Executive conclude, that basic standards are not being
met in a significant part of the Benhall Mill Road Cemetery, as
illustrated on the Kentlive website, in a photograph provided by June
Bridgeman?

 

3.  Please provide full references to laws and/or legal precedents which
make legally valid, (a) the legal notice displayed at the above cemetery
from the 28 March 2019 and (b) the proposal in that notice to, "develop
the land for residential dwellings and a storage depot".

 

4.  Which part or parts of the cemetery referred to in 3 above, were once
owned by a religious organisation and if that has never been the case, is
the Council a religious organisation?

 

NOTES

 

Re. 1, presumably, the Chief Executive has primary responsibility,
followed by a small number of line managers.

 

Re. 2, this is the website referred to:-

https://www.kentlive.news/news/kent-news...

 

Re. 3, the Act of 1981 referred to in that notice, gives no explicit
indication, that the proposal could be lawful under that Act. If so, the
legal notice appears to have been legally invalid (ultra vires).

 

Re. 4, the legal notice displayed at the above cemetery from the 28 March
2019 mentioned nothing other than the Disused Burial Grounds (Amendment)
Act 1981. The relevance of that Act, appears limited to disused burial
grounds owned or once owned by religious organisations.

 

Yours faithfully,”

 

In answer to your initial request, a the following response was sent to
you on 11th July 2019 :

 

“Thank you for your Freedom of Information request.

 

Please find below the response to your recent request. The information has
been provided by our Property Team.

 

Your request:

 

1. Without giving their names, please provide a full list, of the exact
job titles for those members of staff, who have explicit responsibilities
for maintaining standards in the Council's public cemeteries.

 

Chief Executive

Head of Housing, Health and Environment

Director of Change and Communities

Contract Services Manager

Registrar for the Crematorium

 

2. Does the Chief Executive conclude, that basic standards are not being
met in a significant part of the Benhall Mill Road Cemetery, as
illustrated on the Kentlive website, in a photograph provided by June
Bridgeman?

 

Tunbridge Wells Borough Council does not hold the information requested.
The purpose of the Freedom of Information Act 2000 is to allow individuals
access to all ‘recorded’ information’. The guidance from the Information
Commissioner’s Office advises that the Act does not cover requests for
interpretations, to obtain answers from officers to questions raised or to
create new information.

 

3. Please provide full references to laws and/or legal precedents which
make legally valid, (a) the legal notice displayed at the above cemetery
from the 28 March 2019 and (b) the proposal in that notice to, "develop
the land for residential dwellings and a storage depot".

 

(a) I can confirm that the public notice refers to which act the
application is made under. The application has been made in the form
approved by the Ministry of Justice.

(b) Please refine and clarify your request.

 

4. Which part or parts of the cemetery referred to in 3 above, were once
owned by a religious organisation and if that has never been the case, is
the Council a religious organisation?

 

I can confirm that the historic ownership of the land is not in the
council’s possession. Enquiries should be made of HM Land Registry

 

S25 of the burials act 1857 creates a criminal offence for a body or any
human remains which have been interred in a place of burial to be removed
unless:

(i) if the land is consecrated (anglican), a faculty is granted by the
consistory court (rochester diocese here); or

(ii) if the land is not consecrated, a licence is obtained from the
secretary of state (ministry of justice).

 

The land is question is not consecrated and, as such, a licence is being
obtained from the ministry of justice.

 

I hope this information is helpful and if there is anything further I can
help with please contact me on 01892 554077 or via email to
[Tunbridge Wells Borough Council request email]

 

If you are dissatisfied with the information provided or the way in which
we have dealt with your request, you can request a review. Please write to
Patricia Narebor, Head of Legal Partnership and Monitoring Officer at the
Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS or via e-mail to
[email address] requesting a review of the
decision.

 

We will aim to deal with your request within 20 working days. If you
remain dissatisfied following our review, you can then appeal to the
Information Commissioner.

 

Yours sincerely”

 

You replied to that response on 22^nd July 2019 and the Council responded
further on 25^th July 2019 as follows :

 

“In response to your email please see the Council’s response below to the
questions you have raised.

 

Where you have provided your view, the Council has not provided a
response. The purpose of the Freedom of Information Act 2000 is to allow
individuals access to all ‘recorded’ information’. The guidance from the
Information Commissioner’s Office advises that the Act does not cover
requests for interpretations, to obtain answers from officers to questions
raised or to create new information.

 

As you have been advised previously, if you remain dissatisfied with the
response to your Freedom of Information request you can request a review.
Please write to Patricia Narebor, Head of Legal Partnership and Monitoring
Officer at the Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS or via
e-mail to requesting a review of the decision.

 

In view of the seriousness of legal duties and criminal law, please
confirm that none of the listed staff have written anything about
standards.

 

We are unclear regarding the information you are requesting.

 

If my understanding is correct the Chief Executive, Head of Housing,
Health and Environment, Director of Change and Communities, Contract
Services Manager and Registrar for the Crematorium, could all be in breach
of criminal law and each could be fined up £200, if standards do not reach
the required minimum, in all parts of the cemetery.

 

That aspect of criminal law, backs up the legal duty which states that
they "shall keep the cemetery in good order and repair, together with all
buildings, walls and fences".

 

In view of the above, it will undoubtedly astonish local council tax
payers, if staff have not recorded anything about the required standards
and have not responded internally and in writing, to the evidence in June
Bridgeman's photograph on the Kentlive website.

 

Thank you for confirming, that for its proposal to build houses within the
cemetery, the Council does not rely on any law, other than the Disused
Burial Grounds (Amendment) Act 1981. I must assume from your reply, that
there are no legal precedents arising from that one Act, on which the
Council relies.

 

The Council would like to clarify that there has not been a confirmation
that this is the case. The application to develop the cemetery depot (not
the main cemetery) is to be made.

 

I will gladly "refine and clarify" this point, if you kindly let me know
what may be unclear or uncertain about my question.

 

The Freedom of Information process relates to information that is
unavailable within the public domain. Obtaining planning permission is a
process on which information can be obtained within the public domain. The
same principles apply to Tunbridge Wells Borough Council acting as
Landowner which it is doing here (rather than the Local Planning
Authority).

 

I fully understand why the Council relies on the wording of the
application form provided by the Ministry of Justice. Consequently, it has
been asked to investigate whether its form is legally invalid and that it
would be a criminal offence, to continue with the proposal in the legal
notice.

 

My understanding is, that only a religious building could be erected under
the Disused Burial Grounds Acts and only by a religious organisation. The
one and only exception is when the land has previously been owned by a
religious organisation. That is ruled out by the helpful information which
you have provided but in any case, the proposal is not for a religious
building or buildings.

 

If it sounds strange, that only religious buildings can be erected, simply
think about why secular landowners with land which has never been owned by
a religious organisation, are not mentioned in the 1981 Act. Your own
Council fits that secular definition if the details which you have
provided, are accurate.

 

Thank you for the information about exhumation licences. Please inform
your legal colleagues or whoever provided you with that information, that
licences are not relevant - see S.2(7) in the 1981 Act.

 

If licences were to be used to clear all graves, the 1981 Act would still
apply, to protect the area from development.

 

Yours sincerely”

 

On 11^th August 2019 you sent a request for further information. After a
series of e-mails between you and the Council, the following response to
the further request was sent on 23^rd January 2020 :

 

“Further to your additional request for information below:

 

In view of what follows, I must request a copy of the most recent internal
recorded information, proving whether or not Tunbridge Wells Borough
Council is managing to the legal standards previously mentioned, the
"significant part" of the public cemetery referred to in the legal notice
dated the 28 March 2019. That "significant part" includes the area in the
photograph previously mentioned. Recorded information might include other
photographs, showing the true state of the whole of that "significant
part" of the cemetery.

 

Please see attached The Cemetery Management Plan and service specification
which sets out the standards to which we maintain the Cemetery. We have
also included a sample of the regular inspections we carry out. This is
subject to an exemption under the Freedom of Information Act because it
contains personal names. We consider that personal names constitutes
personal data as set out in the Data Protection Act 2018 and is exempt
from disclosure under Section 40 (2) ‘Data Protection’ of the Freedom of
Information Act (2000).

 

Section 40(2) of the FOIA states that information is exempt from
disclosure if it constitutes the personal data of a third party and its
disclosure under the FOIA would breach any of the data protection
principles under the Data Protection Act. We consider that the data
protection principle which would be contravened by disclosing the
information would be the first data principle that ‘personal data shall be
processed lawfully, fairly and in a transparent manner in relation to the
data subject’.

 

In assessing whether disclosure of the information would be lawful, we
have to consider whether processing personal data in response to your
request meets a condition under Article 6 of the General Data Protection
Regulations. We consider that the most appropriate condition would be
‘processing is necessary for the purposes of the legitimate interests
pursued by the controller or by a third party except where such interests
are overridden by the interests or fundamental rights and freedoms of the
data subject which require protection of personal data’.

 

The Council recognises that you have a legitimate interest in the
disclosure of the information, however we consider that disclosure of the
information into the public domain is not necessary to meet your
legitimate interest and we also do not consider it is in the wider public
interest. We consider that disclosure of the information would be unfair
to the third parties and would breach the first data protection principle.
In assessing fairness, we have considered the reasonable expectations of
the third parties, the nature of those expectations and the consequences
of disclosure. If we were to disclose this information we would be
processing the data in a way which was not intended by the third parties
concerned.

 

As we have advised previously, where you have provided your view the
Council has not provided a response. The purpose of the Freedom of
Information Act 2000 is to allow individuals access to all ‘recorded’
information. The guidance from the Information Commissioner’s Office
advises that the Act does not cover requests for interpretations, to
obtain answers from officers to questions raised or to create new
information

 

If you are dissatisfied with the information provided or the way in which
we have dealt with your request, you can request a review. Please write to
Patricia Narebor, Head of Legal Partnership and Monitoring Officer at the
Town Hall, Royal Tunbridge Wells, Kent, TN1 1RS or via e-mail to
[1][email address] requesting a review of the
decision.

We will aim to deal with your request within 20 working days. If you
remain dissatisfied following our review, you can then appeal to the
Information Commissioner.

Review Response

I have reviewed your initial request and the Council’s response and also
the subsequent correspondence referred to above.

With regard to the Council’s initial response to your original request, my
understanding is, based on the fact that you did not request a review at
the time, that the response was satisfactory. You did, however, request
further information and it is the response to that further request that
led to your request for a review.

The Freedom of Information Act 2000 (‘the FOIA’) provides public access to
information held by public authorities. Recorded information includes
printed documents, computer files, letters, emails, photographs, and sound
or video recordings. Guidance issued by the Information Commissioner’s
Office (‘the ICO’) states that a public authority has only to provide
information it already has in recorded form and that it does not have to
create new information or find the answer to a question from staff who may
happen to know it.

Where in your requests you have given your views and opinions on issues,
the Council has not provided a response. The purpose of the Freedom of
Information Act 2000 is to allow individuals access to all ‘recorded’
information’. As the guidance from the ICO advises that the FOIA does not
cover requests for interpretations, opinions or advice or to obtain
answers from officers to questions raised or to create new information, I
have concluded that the Council’s approach was correct.

I have also concluded that your requests for evidence or proof that issues
you have raised have been recorded in any review of the Cemetery
Management Plan and that cemetery is managed in accordance with legal
requirements are outside of the requirements of the FOIA and, therefore,
beyond the scope of my review.

The Council has applied the exemption contained in Section 40(2)of the
FOIA in respect of the redacted Site Visit Report attached to it’s e-mail
dated 23^rd January 2020. Having reviewed the Council’s reasoning for
applying the exemption, including it’s consideration of the public
interest in withholding information, I have determined that the exemption
was correctly applied.

If you are not content with the outcome of this review, you may apply
directly to the Information Commissioner for a decision. The Information
Commissioner can be contacted at: The Information Commissioner’s Office,
Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF.

Regards,

Keith E. Trowell

 

Keith E. Trowell, ACILEx | Team Leader (Corporate Governance)

Mid Kent Legal Services | Maidstone, Swale and Tunbridge Wells Borough
Councils |

Tel: 01622 602 267 | Ext: 2267

 

Maidstone Borough Council, Maidstone House, King Street, Maidstone, Kent
ME15 6JQ 

Swale Borough Council, Swale House, East Street, Sittingbourne, Kent, ME10
3HT

Tunbridge Wells Borough Council, Town Hall, Civic Way, Royal Tunbridge
Wells, Kent TN1 1RS

 

The contents of this e-mail, together with any attachments, may be
confidential or subject to legal professional privilege.  It should not be
shared with anyone without first consulting Mid Kent Legal Services. 

If you are not the intended recipient, please do not forward this email or
the attachments to anybody.  Please notify the sender and delete all
copies of this email from your system.

 

 

[2]Signature

 

T014082/00763897

 

 

References

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1. mailto:[email address]

Dear Keith Trowell,

Thank you for the details of your review.

Those details are difficult to understand, because they require more energy and effort than I can spare, in order to discover, (a) where you are citing what I have submitted, (b) where a reply is repeated and (c) where you are adding review details.

In view of the complexity and lack of clarity, I have had to delay my response, as my full time voluntary efforts, must give priority to those who have urgent needs.

All of the issues raised, trace back to the legal notice dated the 28 March 2019, which was displayed in the cemetery and possibly local newspapers. Since that date, the combined evidence provided by Teresa Evans and myself, including a statement from the Ministry of Justice, all makes clear that the legal notice is legally invalid.

In terms of law, what is very serious, is whether Tunbridge Wells Borough Council intends to press ahead with the details in that legal notice. If so, the evidence provided makes very clear that it would be a criminal act and not merely unlawful (ultra vires).

You appear to have responded from Mid Kent Legal Services and I think I am correct in saying, that other staff have also responded as solicitors, paralegals or similar - ACILEx is unknown to me.

You have all had a very long time to check, whether or not the evidence provided is credible and is or is not misleading.

In view of everything said by all concerned, please confirm whether or not Tunbridge Wells Borough Council intends to press ahead, with the details in the legal notice dated the 28 March 2019.

Yours sincerely,

John Bradfield.

Keith Trowell,

Dear Mr Bradfield,

Thank you for your e-mail. My involvement in this matter was to conduct the internal review of the Council's handling of your Freedom of Information (FOI) request that you asked for in your e-mail dated 17th February. That review has been concluded and if you remain dissatisfied with the way your FOI request was dealt with you should, as previously advised, apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at: The Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF.

The other issues you raise are outside the scope of the FOI review and have been referred to the Tunbridge Wells Borough Council Property and Estates Team for them to respond.

Regards,

Keith E. Trowell

Keith E. Trowell, ACILEx | Team Leader (Corporate Governance)
Mid Kent Legal Services | Maidstone, Swale and Tunbridge Wells Borough Councils |
Tel: 01622 602 267 | Ext: 2267

Maidstone Borough Council, Maidstone House, King Street, Maidstone, Kent ME15 6JQ 
Swale Borough Council, Swale House, East Street, Sittingbourne, Kent, ME10 3HT
Tunbridge Wells Borough Council, Town Hall, Civic Way, Royal Tunbridge Wells, Kent TN1 1RS

The contents of this e-mail, together with any attachments, may be confidential or subject to legal professional privilege.  It should not be shared with anyone without first consulting Mid Kent Legal Services. 
If you are not the intended recipient, please do not forward this email or the attachments to anybody.  Please notify the sender and delete all copies of this email from your system.

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