Legal, expert, audit and DCLG advice of the withdrawal on the core strategy as well as the advice on the weight given to local plans.

Ian Hudspeth made this Freedom of Information request to Northumberland County Council

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

The request was partially successful.

Dear Northumberland County Council,
Can you please issue the legal advice given that drove the Cabinet and Council decision to recall Northumberland's Core Strategy.
Can you also release the advice and information from DCLG on the matter.
Can you issue the legal, expert and technical advice on the weight given to Local Plans whilst a major authority sits without a core strategy in either accepted or emerging form.
Can you also issue any questions and answers from and to Developers who have taken pre-planning advice since the decision to withdraw the Core Strategy was taken.
I would also like released any Risk Assessment information on the subject along with the comments of the internal and external auditors to the Council.

Yours faithfully,

Ian Hudspeth

Northumberland County Council

1 Attachment

Our Ref: 2825  

Dear Enquirer,

INFORMATION REQUEST

Thank you for your request for information which will be dealt with under
the terms of the Freedom of Information Act 2000 / Environmental
Information Regulations 2004.

In some circumstances a fee may be payable and if that is the case, we
will let you know the likely charges before proceeding.

If you have any queries about this matter please contact us. Please
remember to quote the reference number above in any future communications.

Kind regards

Information Governance Office
Northumberland County Council
County Hall
Morpeth
Northumberland
NE61 2EF

Tel: 0345 600 6400
Email: [Northumberland County Council request email]
Web: http://www.northumberland.gov.uk

Northumberland County Council

1 Attachment

Our Ref: 2825   

Dear Mr Hudspeth

INFORMATION REQUEST

I refer to your request for information dated 20.07.2017, which the
Council are currently considering in accordance with the Freedom of
Information Act, and Environmental Information Regulations as applicable.
 
I am writing to clarify the information you require in respect of one
element of your request as set out below:
Can you also issue any questions and answers from and to Developers who
have taken pre-planning advice since the decision to withdraw the Core
Strategy was taken.
 
An initial search on the Council's planning register has identified
approximately 41 pre-applications which have been responded to for the
period covering 5 July to 21 July. 
 
If the Council were to provide all of the pre-app responses given for this
period it would involve needing to consider whether or not the responses
provided could be provided for each of the forty-one applications referred
to above. Given the number of applications this may take a significant
length of time to consider what information was sent out for each pre-app;
obtain the views of the third parties involved; and consider whether or
not this information could be provided in accordance with the
legislation. 
 
Taking the above into account I would be grateful if you could you advise
whether or not you would like to narrow down the scope of this element of
your request to specific pre-apps you are interested in viewing? If you
could advise as to the specific information you would like to view in
respect of this, as this will enable the Council to consider your request
correctly.
 
Should you require any advice in respect of your information request
please get in contact as per the details below.
Yours sincerely
FOI/EIR Coordinator - Planning and Economy
Northumberland County Council
County Hall
Morpeth
Northumberland
NE61 2EF

Tel: 0345 600 6400
Email: [Northumberland County Council request email]
Web: http://www.northumberland.gov.uk

Northumberland County Council

2 Attachments

Our Ref: 2825  

Request for Information

I refer to your request for information about advice received following
the decision made to withdraw the emerging Core Strategy as set out below:

“Can you please issue the legal advice given that drove the Cabinet and
Council decision to recall Northumberland's Core Strategy.

Can you also release the advice and information from DCLG on the matter.

Can you issue the legal, expert and technical advice on the weight given
to Local Plans whilst a major authority sits without a core strategy in
either accepted or emerging form.

Can you also issue any questions and answers from and to Developers who
have taken pre-planning advice since the decision to withdraw the Core
Strategy was taken.

I would also like released any Risk Assessment information on the subject
along with the comments of the internal and external auditors to the
Council.”

Your request has been considered in accordance with the Environmental
Information Regulations 2004.

 

Right of Access

 

The Environmental Information Regulations 2004 provide that a public
authority that holds environmental information shall make it available on
request. The Regulations create a general right of access to environmental
information held by public authorities subject to various exceptions. A
public authority may refuse to disclose environmental information if an
exception to disclosure applies and the public authority decides that in
all the circumstances the public interest in maintaining the exception
outweighs the public interest in disclosing the information. 

 

The Council has carefully considered whether the information requested can
be disclosed under the Regulations, and has concluded that some of this
information is exempt for disclosure under exception 12(3); 12(4)a;
12(4)c); 12(5)b); and 13; of the regulations. The information the Council
can disclose is detailed below.

Information

Can you please issue the legal advice given that drove the Cabinet and
Council decision to recall Northumberland's Core Strategy.

The Council has concluded that the advice provided by Counsel is subject
to legal privilege, and exempt for disclosure under exception 12(5)b) of
the regulations. Further information in respect of the consideration of
this exemption is detailed in the relevant section below.

The advice received from Counsel did however inform preparation of the
substantive and addendum reports to Full Council on 5 July 2017 and these
documents in effect provide a summary of the advice.

This information is publically available on the Council website, however
links to the relevant Committee Meetings have been provided below for ease
of reference:

[1]http://committee.northumberland.gov.uk/M...

Can you also release the advice and information from DCLG on the matter.

The advice provided by DCLG in respect of this matter was issued in an
email to Mark Ketley, Head of Planning Services on 24th May 2017. A copy
of this email is enclosed with this response which has been redacted to
remove the personal details of the officer within the DCLG.

Can you issue the legal, expert and technical advice on the weight given
to Local Plans whilst a major authority sits without a core strategy in
either accepted or emerging form.

The Council has concluded that the advice provided by Counsel is subject
to legal privilege, and exempt for disclosure under exception 12(5)b) of
the regulations. Further information in respect of the consideration of
this exemption is detailed in the relevant section below. The advice
received from Counsel did however inform preparation of the substantive
and addendum reports to Full Council on 5 July 2017 and these documents in
effect provide a summary of the advice.

This information is publically available on the Council website, however
links to the relevant Committee Meetings have been provided below for ease
of reference:

[2]http://committee.northumberland.gov.uk/M...

In addition, the Council prepared a Position Statement following
withdrawal of the Core Strategy setting out the position to be taken in
relation to a number of planning policy matters. This was considered by
Cabinet on 27 July 2017 and can be found via the following link:

[3]http://committee.northumberland.gov.uk/M...

Can you also issue any questions and answers from and to Developers who
have taken pre-planning advice since the decision to withdraw the Core
Strategy was taken.

Clarification Requested

As set out by email on 28 July, an initial search on the Council's
planning register has identified approximately 41 pre-applications which
have been responded to for the period covering 5 July to 21 July.

If the Council were to provide all of the pre-app responses given for this
period it would involve needing to consider whether or not the responses
provided could be provided for each of the forty-one applications referred
to above. Given the number of applications this may take a significant
length of time to consider what information was sent out for each pre-app;
obtain the views of the third parties involved; and consider whether or
not this information could be provided in accordance with the legislation.

Taking the above into account I would be grateful if you could you advise
whether or not you would like to narrow down the scope of this element of
your request to specific pre-apps you are interested in viewing? If you
could advise as to the specific information you would like to view in
respect of this, as this will enable the Council to consider your request
correctly.

I would be grateful if you could provide clarification in respect of the
above by 1 September 2017 in order that we can respond fully to your
request, and respond to you in a timely manner. Once you have clarified
the above matter we will progress this element of your request
accordingly.

Should you require any advice in respect of your information request
please do not hesitate to get in contact.

I would also like released any Risk Assessment information on the subject
along with the comments of the internal and external auditors to the
Council.

The Council does not hold any information in respect of a risk assessment
on this subject and therefore it has been concluded that the information
requested under this element of your request is exempt from disclosure
under section 12(4)a of the regulations.

Exceptions

Information Not Held

The Council has concluded that the following information is not held by
the Council,

“I would also like released any Risk Assessment information on the subject
along with the comments of the internal and external auditors to the
Council.”

Exception 12(4) a of the legislation sets out:

4) For the purposes of paragraph (1)(a), a public authority may refuse to
disclose information to the extent that -
(a) it does not hold that information when an applicant's request is
received;

Personal Data

Regulations 12(3) and 13 set out various exceptions to the right of access
for personal data that is protected by the Data Protection Act 1998.

The term “personal data” is defined in the Data Protection Act as amended
by the Freedom of Information Act 2000, which states:

“’Personal data’ means data which relate to a living individual who can be
identified –

(a)    From those data, or

(b)    From those data and any other information which is in the
possession of, or likely to come into the possession of the data
controller; and includes any expression of opinion about the individual
and any indication of the intentions of the data controller or any person
in respect of the individual;”

Furthermore, Section 2 of the Data Protection Act contains additional
categorises of personal data which is regarded as "sensitive personal
data", and consisting of information as to –

(a) the racial or ethnic origin of the data subject,

(b) his political opinions,

(c ) his religious beliefs or other beliefs of a similar nature,

(d) whether he is a member of a trade union (within the meaning of the
Trade Union and Labour Relations (Consolidation) Act 1992),

(e) his physical or mental health or condition,

(f) his sexual life,

(g) the commission or alleged commission by him of any offence, or

(h) any proceedings for any offence committed or alleged to have been
committed by him, the disposal of such proceedings or the sentence of any
court in such proceedings.

To determine whether or not it may disclose personal data under the
Environmental Information Regulations, Northumberland County Council must
look to the provisions of the Data Protection Act 1998, which include the
first to fifth data protection principles.

If the personal data is about someone other than the applicant, there is
an exemption if disclosure would breach any of the data protection
principles set out in Schedule 1 of the Data Protection Act 1998.

Where disclosure by a public authority of the personal data sought would
contravene the first data Protection Principle, it is absolutely exempt
from disclosure.

The first data protection principle states:

“Personal data shall be processed fairly and lawfully and, in particular,
shall not be processed unless-

(a)    at least one of the conditions in Schedule 2 is met, and

(b)    in the case of sensitive personal data, at least one of the
conditions in Schedule 3 is also met

The first data protection principle is designed to ensure that any
disclosure of personal information is fair and lawful. Disclosure under
the Environmental Information Regulations is considered as disclosure to
the public at large. It is therefore necessary to balance any legitimate
public interest in disclosure against the interests of the individual
whose data it is.

Your request covers correspondence between an officer within the
Department of Communities and Local Government (DCLG) to the Council’s
Head of Planning, and the personal details relate to officers working in
an official capacity. The Council understands it is the policy of DCLG not
to release into the public domain the personal details of officer’s below
Senior Civil Service Level. Taking this into account we have gone on to
consider whether, it would be fair to the third parties concerned to
disclose their personal data without consent. We consider it would not be
fair to the officer concerned to disclose his / her personal information
into the public domain. The council is firmly of the view that whilst
there may be public interest served by the disclosure of the content of
the communications itself; there is little or not public interest in
disclosing details of the case officer concerned.

The following personal data has been redacted from the information
enclosed:

name, contact number and email address of officer working in the
Development Plans - Local Plans, Planning Directorate team within the
DCLG.

Legal Privilege

Regulation 12(5)(b) provides:

“…a public authority may refuse to disclose information to the extent that
its disclosure would adversely affect-

(b) the course of justice, the ability of a person to receive a fair trial
or the ability of public authority to conduct an enquiry of a criminal or
disciplinary nature;”

The purpose of this exception includes maintaining the principle of legal
professional privilege.

The Council has identified that some of the information covered by this
request includes external legal advice which the Council has obtained in
respect of the withdrawal of the Core Strategy. The Council considers that
this correspondence is legally privileged information and is satisfied
that the disclosure of the withheld information would give the public
access to privileged information which would, or would be likely to, have
an adverse effect upon the course of justice.

The importance of maintaining legal professional privilege and the adverse
consequences for the course of justice of a failure to do so were the
subject of analysis by the Upper Tribunal in the case DCLG v ICO and WR
(2012) UKUT 103 (AAC). In discussing whether the Regulation 12(5)(b) was
engaged, the Upper Tribunal said that it was relevant to consider the
general effect which disclosure of legal advice would have in weakening
confidence in the efficacy of legal professional privilege, as well as the
effect on the particular case in which disclosure was sought.

Application of the public interest test

The Council is required to apply the public interest test and must strike
a balance between the public interest in disclosing information and the
public interest in withholding it. The Council can only withhold the
information if it concludes the public interest in maintaining the
exemption outweighs the public interest in disclosure. The public interest
in the context of freedom of information means the public good, not what
is of interest to the public, and not the private interests of the
requester.

The Council considers that there is a public interest in ensuring
transparency in respect of the decisions in which it makes, and this may
be particularly the case in respect of decisions relating to the Core
Strategy. The Council has provided information within reports to Full
Council on the 5 July 2017 and within reports to Cabinet on the 27 July in
respect of the proposals for the withdrawal of the Core Strategy. The
information requested within this request however includes the legal
advice received in respect of this matter, and the Council must weigh the
transparency arguments in terms of disclosure against the potential harm
caused by undermining the concept of legal privilege.

There is a very strong public interest in upholding the principle of legal
professional privilege which is designed to provide confidentiality
between a professional legal advisor and their client to ensure openness
between them and safeguard access to fully informed realistic and frank
legal advice including potential weaknesses and counter arguments. It is a
longstanding, well established and important common law principle. The
Information Tribunal affirmed this in the case of Bellamy v Information
Commissioner (EA/2005/0023; 4 April 2006), when it stated:

 “there is a strong element of public interest inbuilt into the privilege
itself.  At least equally strong countervailing considerations would need
to be adduced to override that inbuilt public interest. It is important
that public authorities be allowed to conduct a free exchange of views as
to their legal rights and obligations with those advising them without
fear of intrusion, save in the most clear case…”

It is vital that public authorities are able to obtain full and frank
legal advice in confidence.

Legal advice necessarily highlights both strengths and weaknesses and so
if legal advice obtained were to be routinely disclosed public authorities
would potentially be in a weakened position in comparison to persons not
bound by the Freedom of Information Act 2000. Consequently, there must be
a strong public interest in ensuring legal professional privilege applies
equally to all parties. Furthermore, if legal advice were disclosed
routinely, there would be disincentive to such advice being sought and/or
a disincentive to seeking advice based on full and frank instructions.

If legal advice were routinely disclosed, caveats, qualifications or
professional expressions of opinion might be given in advice which would
therefore prevent free and frank correspondence between a public authority
and its legal advisers.

It is important that legal advice includes a full assessment of all
aspects of an issue, which may include arguments both for and against a
conclusion; publication of this information may undermine public
confidence in decision making and without comprehensive advice the quality
of decision making would be reduced because it would not be fully informed
and balanced. Advice would be diminished if there is a lack of confidence
that it had been provided without fear that it might be disclosed.

After careful consideration the Council takes the view that the
information protected by legal professional privilege should not be
disclosed because the inherent public interest in protecting the
established convention of legal professional privilege is not countered by
at least equally strong arguments in favour of disclosure.

Advice and Assistance

The Council recognises its statutory duty to provide advice and assistance
under Regulation 9 of the Regulations.  Subject to the provision of the
Regulations, the Council is seeking to be transparent and open it is
response.

Refusal Notice

With the exception of the information disclosed herewith, please treat
this letter as a Notice of Refusal as regards the information covered by
the exceptions in Regulation 12(3); 12(4)a; 12(5)b); and 13 of the
legislation.

Representations and Reconsideration

 

If you consider that the Council has failed to comply with a requirement
of the Regulations in relation to your request you have a right to make
representations under Regulation 11.  Representations must be made in
writing no later than 40 working days after the date on which you believe
that the Council failed to comply with the requirement

 

Any representation should be addressed to:

 

FOI / EIR Complaints

Northumberland County Council

County Hall

Morpeth

NE61 2EF

 

Enforcement and Appeal Provisions

 

Should you remain dissatisfied following the above process, you have a
right under the Regulations to apply to the Information Commissioner for a
decision as to whether your request has been dealt with in accordance with
the requirements of the Regulations.  The Information Commissioners
address is:

 

Information Commissioners Officer

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

 

Telephone no. 01625 545745

Fax no. 01625 524510

Email:  [4][email address]

 

Yours faithfully

FOI /EIR Coordinator -Planning and Economy
Northumberland County Council
County Hall
Morpeth
NE61 2EF

Email: [Northumberland County Council request email]

References

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