New Road: Stoneleigh, Crackley Gap, Kirby Corner, A452, A46

The request was refused by Warwick District Council.

Freedom of Information Officer,
Warwick District Council,

Dear Sir or Madam,

I refer to the agenda papers for the meeting of Warwick District Council on the 24th February 2016 that are on line at the following link

https://estates4.warwickdc.gov.uk/cmis/M...

Agenda item 14 has an Appendix 1. that is linked off that page.

Buried on page 29 of that Appendix, under the heading “Policy DS NEW 1 Directions for Growth South of Coventry” it states that “proposals should take account of the potential for a new road linking the A46 Stoneleigh junction with Kirby Corner and subsequently to the A452 or A45, which has been identified as an important means of mitigating increased traffic flows on the local and strategic road network; increasing existing strategic highway capacity; and providing an improved future strategic highway link to UK Central;”

I note also the recent report on the website of the Leamington Courier dated Friday 1st April 2016 at this link.

http://www.leamingtoncourier.co.uk/news/...

This article cites council officers stating “the development will also be influenced by a revised masterplan for the University of Warwick and long-term plans for a new road link between the A46 Stoneleigh junction through to the ‘UK Central’ development in Solihull and onto Birmingham Airport, according to council officers”

This would appear to relate to the same road proposal and the comments indicate that the proposals are not as ethereal as the local plan consultation implies.

Under the provisions of the Section 5 of the Environmental Information Regulations, please provide all information that the council holds hold relating to such a potential new road development. This would include any reports, plans, cost-benefit analysis and possible route option information. This will include the documentation within which the claimed merits of such a road have been “identified”, and any evidence claimed to substantiate such merits. The information may be held independently by the council or will be included in communications to or from other public agencies.”

This now requested information is clearly essential to public understanding of the revised local plan and should have been published, unrequested and in full, under the provisions of Regulation 4 of the Environmental Information Regulations. As a minimum, under Arhus principles that underpin the regulations, this now requested information should have been published at the outset of the local plan consultation period, and certainly with the onset of the consultation in respect of the revised plan.

Against that background, aside from the consequences under the provisions of the EIR, any delay to publication of this information will jeopardise the lawfulness of the consultation and leave the local plan vulnerable to judicial challenge. As the council is apparently keen to ensure that an appropriate local plan is engaged, and as it is clearly in the public interest that this information is published, I recommend that the council does not delay publication for the maximum time allowed under the Regulations or otherwise prevaricate by invoking exceptions under the regulations. The requirement within the regulations to publish “as soon as possible” and “in the public interest” is paramount.

Yours faithfully,

Dr Paul Thornton

Alan Robbins, Warwick District Council

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    Freedom of Information request New Road Stoneleigh Crackley Gap Kirby Corner A452 A46.txt

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Dear Dr Paul Thornton,

 

Thank you for your request for information which I acknowledge was
received by the District Council on 1 April 2016.

 

Your request is currently being considered. If the District Council is
able to provide you with the information you have requested, then you are
entitled to receive it within 20 working days.

 

If you have any queries or should you wish to make a complaint about the
manner in which your request is being dealt with then please do not
hesitate to contact me at the above address in the first instance. Any
complaints will be dealt with under the Council’s corporate complaints
procedure.

 

Further information about your rights is available from the Information
Commissioner’s Office (01625 545 700) or [1]www.ico.org.uk and on the
District Council’s website.

 

 

Kind regards

Alan Robbins

Corporate Support Team Assistant

Warwick District Council

Riverside House

Milverton Hill

Royal Leamington Spa

CV32 5HZ

01926 456123

 

Please don’t print this email unless you really need to.

 

 

 

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Mr Alan Robbins
Corporate Support Team Assistant
Warwick District Council
Riverside House
Milverton Hill
Royal Leamington Spa
CV32 5HZ

Dear Mr Robbins,

'New Road: Stoneleigh, Crackley Gap, Kirby Corner, A452, A46'

Thank you for your email of the 8th April which is on line at the following link.

https://www.whatdotheyknow.com/request/3...

You observe that I am entitled to receive the requested information within 20 working days. I assume this is a standardised form of words.

As I pointed out in the request, this is a request under the provisions of the Environmental Information Regulations. As such, under those regulations, the public authority is required to provide the information “as soon as possible”. The 20 working day limit is an absolute maximum that can only be used if, in the circumstances of the individual case, the information cannot genuinely and reasonably be provided sooner.
As half of that 20 day period has already elapsed, and given the additional reasons for time pressure in this case, I am writing to ask you to ensure that the anticipated timetable for a response is reviewed.

Unless the publication is expedited, it will not be available to the public in time to inform the consultation responses provided to the inspector in respect of the local plan.

Yours sincerely,

Dr Paul Thornton

Alan Robbins, Warwick District Council

Thank you for your email. I am currently away from the office. Please
contact a colleague in the Corporate Support Team on 01926 456123 or email
[email address].

 

Alternatively I will respond within 5 days of my return.

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Dear Warwick District Council,

I have just written to Mr Robbins from your office and received an out of office reply in respect of an Environmental Information Request that is on line at this link.

https://www.whatdotheyknow.com/request/n...

If Mr Robbins is away, I would be grateful if you would ensure that the matter is addressed by his deputy as a matter of urgency.

Yours faithfully,

Dr Paul Thornton

Dear Warwick District Council,

Your response in respect of my enquiry is now outstanding beyond the time period permitted under the regulations.

I look forward to your response by return after the bank holiday.

Yours faithfully,

Paul Thornton

Bill Hunt, Warwick District Council

1 Attachment

Dear Dr Thornton

Please find the Council's response attached.

Yours sincerely

Bill Hunt
Deputy Chief Executive
Warwick District Council
01926 456014
07968 481185
[email address]

www.warwickdc.gov.uk

Twitter: @Warwick_DC

*Please don’t print this e-mail unless it’s really necessary

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For attention of
Mr Chris Elliot
Chief Executive
Warwick District Council

Dear Mr Elliot,

It is now some five years since it was discovered, to the embarrassment of local councillors, that council officers had been in secret discussions with HS2 Ltd and the DfT facilitating the development of a route that is wholly detrimental to the people the councillors represent. A new request for information under the Environmental Information Regulations has revealed that such surreptitious collusion is on-going.

I refer to a letter from your colleague and Deputy, Mr Bill Hunt, dated 29th of April 2016 under the reference FOI 162.16. His letter is a response to a request for information that I submitted on 1 April 2016. The request and the further exchange, including this, is online at the following link.

https://www.whatdotheyknow.com/request/n...

Mr Hunt has acknowledged that the requested information that is held falls under the provisions of the Environmental Information Regulations (EIRs), and is contained within records of meetings that took place with other public agencies at which the road link was discussed. The council has chosen to withhold the requested information and this letter is an appeal to that decision under Section 11 of the EIRs.

I have read the further report in respect of the local plan to which Mr Hunt refers which is linked directly here:
http://tinyurl.com/WarwickItem9

Along with an appendix, a “vision”, directly linked here:
http://tinyurl.com/WarwickItem9Appendix

If, as Mr Hunt advises, “the Council holds no information in relation to Plans, Cost-benefit analyses, or Route information” then the content of those documents has no supportive evidence base. Those documents contain a number of factual inaccuracies

Consideration of this documentation has been further informed by a conversation overheard at a very recent local civic event, involving an apparently authorative source, to the effect that 'Because there is room within the land take, a dual carriageway will be built alongside HS2 from where it crosses the A46 to where it crosses the A45. That's coming from HS2 Ltd, just being mentioned to councillors at this level (below County).”

This comment is consistent with wide recognition that the land take for HS2 in rural areas has been substantially greater than that required for the construction of the railway.

Mr Hunt has documented an intention that the requested information be published in December 2016. One must speculate on the reasons for his commitment to this explicit timetable. It is not explained. This date corresponds with the timetabled conclusion of the passage of the HS2 Bill in Parliament. That Act will provide planning consent for the HS2 development. Only once that parliamentary process is concluded does it become possible for new and further changes to the affected locations to be made through a separate, local planning process.

One reason the requested information is required is that it appears distinctly possible that a new road proposal is, in fact, intrinsic to the overall HS2 project, and may have been for some substantial time. If that is so, the detailed planning and environmental submissions that have been presented to the public and to Parliament in respect of HS2 in this geographical area will have been misleading, if not wholly false.

The central tenet of Mr Hunt's response is that the information can be lawfully and properly withheld until the intention to make public in December 2016 because "should these proposals continue to be developed to a more defined level of detail they will, as with any other major transport scheme, be subject to an appropriate level of public consultation in accordance with the relevant approval process."

In his analysis, Mr Hunt misunderstands the Environmental Information Regulations (EIRs) and the European Directive from which they derive and which, in turn, was adopted to implement the International Convention on Access to Information, Public Participation in Decision-Making and Access to Justice on Environmental Matters – “The Arhuss Convention”

In a nutshell, the objective is that environmental information must be published at the earliest opportunity so that the public can fully participate in the democratic processes involved in environmental decision-making.

Mr Hunt documents a preference for a process which keeps the public in the dark until the public authority has finalised it’s proposals in detail. Only then is the information placed in the public domain for consultation. The public consultation follows decisions that have been already made by the authority. Albeit that further ratification of final decisions might be required after formal consultation, such predetermined plans obstruct the public scrutiny of options that were available at an early stage, including abandonment. Public participation is obstructed because the consultation period is delayed and foreshortened.

The council and the other authorities (whichever they might be) have already secretly decided that these proposals should be “developed to a more defined level of detail”. It is that decision which demands public scrutiny. And it is the development to that “more defined level of detail” that requires public participation.

Mr Hunt is correct that there are exceptions under the EIRs by which information can be withheld. But there are clear grounds to doubt that the EIR exemptions claimed in this case are actually engaged. Certainly, Mr Hunt makes provides no substantiation or clarification of the claims.

Additionally, all those exemptions are subject to a public interest test and the analysis for this must start with a presumption in favour of publication. The public interest in favour of withholding the information must be substantial if it is to override that assumption.

Regulation 12(4)(d)
In respect of EIR 12(4)(d), Mr Hunt has confirmed that the council holds the requested information in the form of “records of meetings attended by council officers with other public agencies at which the road link was discussed.”

As such, these are not “materials that are still in the course of completion” nor “unfinished documents” nor “incomplete data”. They are completed, finished records of those meetings. These records have been relied upon in the preparation of the papers linked above to which Mr Hunt drew my attention i.e. those for agenda item 9 of the council’s executive meeting on the 6th April 2016.

The source document described in my original enquiry confirms that the information is now clearly a core foundation of amendments to the council’s local plan that have been provided to the Planning Inspector. The council has already undertaken public consultation on its decision in respect of those amendments without providing the full information.

In addition, I have been unable to locate any reference to this road proposal in the documentation relating to the first version of the local plan that was initially put out to public consultation and that was deemed inadequate by the Inspector. Publication of the disputed information is required to clarify the extent that knowledge of the road proposal might, should or did inform the council in the preparation of that rejected version of the local plan.

Further, the new proposals set out in the new version of the local plan cannot progress without a plan showing at least the indicative route for this strategic highway. The documentation Mr Hunt has referenced is explicit that such a road will be necessary to enable the strategic housing allocations south of Coventry and the university expansion to be properly serviced. If the road proposals are still “inchoate and hypothetical” (see below), then so too must be the revised local plan proposals submitted to the Inspector. As a minimum, this must question the deliverability of the newly proposed major developments within the timescale of the plan period.

In this case, the use of EIR12(4)(d) is an explicit attempt to thwart the primary purpose on the face of the Convention, the Directive and the Regulations. i.e. the provision of information at the earliest opportunity so that the public can properly participate in the democratic process.

That the proposals discussed at those meetings might be an early stage, as claimed, does not engage this exception.

Only in his public interest arguments does Mr Hunt claim that the "subject referred to is in an embryonic stage of development.”

The notion that information described as "embryonic" might be withheld under EIR 12(4)(d) derives from a case published in 2001. (Maile v Wigan Metropolitan Borough Council [2001] Env.L.R. 11). That case related to interpretation of the predecessor version of the regulations in respect of a request for disclosure of a database containing raw data relating to potentially contaminated sites. The database was being created in anticipation of clear and predetermined remediation obligations falling on that local authority. The judge concluded that "these purely speculative thoughts could cause unnecessary alarm and despondency among the local land owners and citizens or landowners” and that it would be “highly unsatisfactory to reveal to the public material which has been variously described as inchoate, embryonic and hypothetical."

The circumstances in Maile v. Wigan are wholly distinct from this current case. In that case, the information was being accrued entirely within the public body. It had not been shared with any other party already. The data requested was intended to be scientific, factual, measured data and had not been formally or properly recorded. It contained probable errors and was substantially incomplete.

In this case, the information is far from “purely speculative”. It is not “hypothetical”. It is not “inchoate”. There is clearly a road building proposal that has progressed beyond all of those descriptors.

The use of the term “embryonic” in this context is unfortunate and was not one chosen by Mr Justice Eade but was proffered by Wigan Council. Applied literally, the term can represent a spectrum of development from a few wholly undifferentiated cells to a miniature but fully and completely formed organism. And even at the stage of a few undifferentiated cells, the embryo contains all the genetic DNA plans required. So a project might be reasonably described as “embryonic” and yet be way beyond a stage when the convention, and the legislation, envisage publication.

In Maile v Wigan, publication was deemed “unnecessary”. In this case, whether the public, including the local land owners and citizens or landowners, are faced with “alarm or despondency” is irrelevant because it is clearly “necessary” for them to be informed to properly and fully participate in the democratic process.
I would draw your attention to the decision made by the Scottish Information Commissioner , (Decision 230/2006 McIntosh v. Aberdeen City Council) available at the following URL.

http://www.itspublicknowledge.info/Appli...

"Para 32. Taking account of the previous decisions and guidance available on this particular exception, I do not accept that the withheld material is material which is still in the course of completion. I have looked at the case of Maile v Wigan Metropolitan Borough Council [2001] Env L R 11, ……….
"Para 33. In the present application, each document is, as far as I can see, material which is complete: the documents withheld are not at a preparatory state, and any ‘incompleteness’ or inchoateness is due, as far as I can see, to their nature as working notes rather than as being in stages for publication. For example, there are not stages which the documents have to go through before being complete. That the document will inform a greater and currently incomplete document (the EIA) is not in dispute. As I understand it, whilst the documents are in use, they are not having more work done on them. They are, as the Council said, “working notes”."

The disputed information in this case exactly fits that description.

I would draw your attention to the further guidance in respect of this exemption from the UK Information Commissioner at this link:

https://ico.org.uk/media/for-organisatio...

“The fact that a public authority has not completed a particular project or other piece of work does not necessarily mean that all the information the authority holds relating to it is automatically covered by the exception.

This case seems to be wholly analogous to a case involving Chichester council. FER0349127 the requestor had submitted a request to Chichester District Council for information about a proposal to build affordable housing on land next to her property. The Council applied the exception in regulation 12(4)(d) to certain documents on the basis that its proposals were still at an early stage and contracts had not been finalised. The Commissioner found that the exception was not engaged. The withheld documents included a statement that the Council had given to the County Council to seek its advice in its capacity as the Highways Authority, and a report to the Council’s Executive Board about the proposal

Both the statement and the report were finished documents and the Council had submitted them to the County Council and the Executive Board respectively, for consideration as part of a formal process.”

Regulation 12(4)(e)

Wholly contrary to the claimed engagement of EIR12(4)(e), the disputed information is not internal to the council. Mr Hunt is explicit that the disputed information is information shared between representatives of “a number of public agencies”. By definition, these cannot be “internal communications”. Cryptically, Mr Hunt has failed to identify those agencies. But it is known from parallel enquiries that the other bodies include, Coventry City Council, Solihull Council, Warwickshire County Council and the DfT.

Regulation 12(5)(e)

In respect of the protection of economic interests, The UK Information Commissioner has set out the tests that need to be met for Regulation 12 (5) (e.) to be engaged in guidance and an example decision also against Chichester District Council dated 5 Aug 2010 ref FER0256705 at the links below.

https://ico.org.uk/media/for-organisatio...

https://ico.org.uk/media/action-weve-tak...

In claiming the engagement of Regulation 12(5)(e), Mr Hunt has not identified the “legitimate economic interest” that would be unprotected by publication of the disputed information. Nor has he substantiated or quantified the detriment that he claims might arise. Nor has he indicated how the disputed information is “commercial or industrial”. Nor has he explained how the confidentiality claimed is substantiated by a provision in law.

On the contrary, the information has unequivocally been shared between various public authorities. They cannot mutually contract themselves out of the terms of the EIR’s simply by mutually self-engaging a claim to confidentiality.

Public interest arguments

I have substantially addressed the public interest arguments in my preamble above. To the extent that Mr Hunt sets out further public interest arguments, they are the generic justifications for each of the exemptions. The presumption in favour of publication in the EIRs is that the public interest should normally over ride those exemptions. Mr Hunt has not provided any substantiation specifically relating to this case that the public interest in this case is sufficient to oblige engagement of the exemptions.

The regulations require that the review of the decision that I am requesting here is undertaken “as soon as possible”. The period otherwise permitted under the regulations is an absolute maximum. There can be no legitimate justification for that maximum period to be required in this particular case.

I am sure that you will ensure that the issues here are properly considered but, should council officers be minded to persist in withholding the information or prevaricate otherwise, I trust that council members will be informed immediately so that a decision can be properly expedited. Residents will be looking to their elected representatives to properly reflect the public interest to ensure that the council ceases its needlessly secretive activities.

Yours sincerely,

Dr Paul Thornton

Information, Warwick District Council

Dear Dr Thornton,

Thank you for your email.

I have accepted this as a request for an internal review of the response you received from Mr Hunt.

This will be undertaken independently by a member of our Legal Services Team who will provide me with a report for my consideration. I will consider the report and act upon the recommendations of it and respond to you.

This will normally be completed within 20 working days of receipt of your request, however this specific case may take longer to respond to due to the technical nature of the request for information and the points you have made below, but this will not take more than 40 working days. I am sure that the officer undertaking this review will do everything they can to complete the review at the earliest opportunity.

Yours sincerely

Graham Leach
Democratic Services Manager and
Deputy Monitoring Officer

Democratic Services, Warwick District Council, Riverside House,
Milverton Hill, Royal Leamington Spa, CV32 5HZ

Tel: 01926 456114 www.warwickdc.gov.uk

*Please do not print this email unless you really need to.

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Graham Leach
Democratic Services Manager and
Deputy Monitoring Officer
Democratic Services, Warwick District Council, Riverside House,
Milverton Hill, Royal Leamington Spa, CV32 5HZ

Dear Mr Leach,

I refer to your email of the 18th May 2016 that is on line at this link.
https://www.whatdotheyknow.com/request/n...

Your email was an acknowledgement of my request for internal review of Mr Hunt's decision to with hold information.

Under the EIRs, the council was under an obligation to provide a substantive response to this "as soon as possible." The 40 working day period is an absolute maximum permitted only where the circumstances justify and even that period has now been exceeded.

I trust that your substantive response will be provided by return and will include the requested information.

Yours sincerely,

Dr Paul Thornton

Alan Robbins
Corporate Support Team Assistant
Warwick District Council
Riverside House
Milverton Hill
Royal Leamington Spa
CV32 5HZ

Dear Mr Robbins,

I refer to my message sent to Mr Graham Leach on the 16th July 2016 that is on line at the link below
https://www.whatdotheyknow.com/request/n...

Despite the council having unlawfully delayed, I have not even received an acknowledgement let alone clarification of the councils intentions in respect of this matter.
I am making parallel submissions to the other contact addresses that have been used in this matter in the hope that a suitable response from the council might now be expedited.
Yours sincerely,

Paul Thornton

Information, Warwick District Council

Dear Dr Thornton,

Apologies because I thought I had replied to this email last week.

I am aware that this report is close to concluding and I understood its arrival was imminent. I am in the process of trying to contact the officer undertaking this review for me to confirm when I will receive their report so that I can respond to you as a matter of urgency.

Graham Leach
Democratic Services Manager and
Deputy Monitoring Officer

Democratic Services, Warwick District Council, Riverside House,
Milverton Hill, Royal Leamington Spa, CV32 5HZ

Tel: 01926 456114 www.warwickdc.gov.uk

*Please do not print this email unless you really need to.

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Alan Robbins, Warwick District Council

Dear Dr Paul Thornton,

Thank you for your email dated 24 July 2016. I have spoken with Mr Graham Leach and I understand that he will issue a response imminently. The response will include an explanation for the delay.

Kind regards

Alan Robbins
Corporate Support Team Assistant
Warwick District Council
Riverside House
Milverton Hill
Royal Leamington Spa
CV32 5HZ
01926 456123

Please don’t print this email unless you really need to.

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Graham Leach, Warwick District Council

Dear Dr Thornton,

I can confirm that I received the draft report back from the Solicitor undertaking this review on my behalf. I have asked a couple of questions of clarification on this prior to me responding to you on this matter.

I would anticipate that this response will be sent to you in full before the end of this week.

Regards

Graham Leach
Democratic Services Manager and
Deputy Monitoring Officer

Democratic Services, Warwick District Council, Riverside House,
Milverton Hill, Royal Leamington Spa, CV32 5HZ

Tel: 01926 456114 www.warwickdc.gov.uk

*Please do not print this email unless you really need to.

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Graham Leach, Warwick District Council

Dear Dr Thornton,

I can confirm that the internal review has now been concluded by a Solicitor acting on my behalf.

I have accepted their review on this matter. In summary they have considered your request, the information and if this could be released.

They have determined that EIR 12(4)(e) is not applicable and that the criteria for exception EIR 12(5)(e) is not met.

However they have concluded, which I accept, that the application of EIR 12(4)(d) allowed the Council to withhold the information. The public interest test has been satisfied, because if the information was to be disclosed there could be unnecessary distress caused to residents living near to the potential scheme. The Council requires the necessary time and private space to develop the potential scheme and will engage with the public once this has been completed. As previously stated the information will be available around December 2016.

If you are dissatisfied with the outcome of this review you are entitled to contact the Information Commissioner, details of how to do this can be found at www.ico.org.uk

Graham Leach
Democratic Services Manager and
Deputy Monitoring Officer

Democratic Services, Warwick District Council, Riverside House,
Milverton Hill, Royal Leamington Spa, CV32 5HZ

Tel: 01926 456114 www.warwickdc.gov.uk

*Please do not print this email unless you really need to.

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Paul Thornton left an annotation ()

A further meta-request for information about the handling of this request has been submitted to Warwick District Council .
https://www.whatdotheyknow.com/request/n...
The response to this request will be referred to the Information Commssioner