RBKC Noise Abatement Notice

Mrs Carrabino made this Freedom of Information request to Royal Borough of Kensington and Chelsea

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

Response to this request is long overdue. By law, under all circumstances, Royal Borough of Kensington and Chelsea should have responded by now (details). You can complain by requesting an internal review.

Dear Royal Borough of Kensington and Chelsea,
REQUEST FOR INFORMATION
ENVIRONMENTAL INFORMATION REGULATIONS 2004

1. This is a request for information under Regulation 5(1) of the Environmental Information Regulations 2004 (“EIR”) made to the Royal Borough of Kensington and Chelsea (“the Council” or “RBKC”);

2. The information requested is summarised below; it relates to the Council’s decisions and behaviour following the service of a noise abatement notice on Mr and Mrs A under section 80(1) of the Environmental Protection Act 1990 (“the Notice”) under reference SRCON/14/148340;

3. The Notice severely restricted Mr and Mrs A’s teenage sons’ freedoms and their “entitlement” (as declared by District Judge Roscoe in the Magistrates' Court proceedings) to play the piano in their family home;

4. The request is for information collected and held by the Council from 7th April, 2015 until 4th July 2017.

5. The Council’s behaviour in this dispute and its decision to divert substantial public resources and taxpayer funds into a petty neighbour dispute about piano playing – a dispute which would have been resolved privately between neighbours had RBKC not intervened - must be scrutinized.

6. Regulation 5 of the EIR requires a response to this request as soon as possible, and within 20 days of receipt.

SUMMARY OF SIGNIFICANT EVENTS IN THE BACKGROUND TO THE REQUEST

7. The Council issued the Notice on 7th April 2015. Mr and Mrs A successfully appealed the Notice in Magistrates’ Court under section 80(3) of the EPA 1990.

8. The Magistrates’ Court judgment was received by both parties on the 5th April, 2016 and on the 8th April, 2016 Mr and Mrs A, having won the case, made an offer to settle the question of costs at a significant discount to their actual costs, so as to avoid the need for a further hearing on costs. The offer was ignored by RBKC, the costs hearing went ahead and on the 29th June, 2016, District Judge Roscoe in the Magistrates’ Court proceedings awarded Mr and Mrs A their costs in full.

9. It is an established legal principle that the judge could only have ordered costs against the Council in these proceedings if she were satisfied that the Council had behaved dishonestly or unreasonably.

10. On the 29th April, 2016, the Council submitted an application to appeal (on questionable grounds) the Magistrates’ Court judgment.

11. On the 25th May 2016 the Council’s newly appointed QC, Mr James Pereira, submitted a revised appeal of the Magistrates’ Court judgment.

12. On the 19th July, 2016 the Council submitted an application to appeal the Magistrates’ Court judgment on costs.

13. Between 5th April 2016 and 21st June 2017, and despite the questionable legal merit of the Council’s applications to appeal, the Council refused all reasonable attempts at negotiation to settle the matter prior to the High Court hearing scheduled for 4th July 2017. Only after the Grenfell Tower tragedy did the Council abruptly withdraw all legal proceedings.

14. On 9th May 2017, Mr and Mrs A submitted an offer to the Council to donate a significant sum of money to vulnerable residents of the RBKC Community if the Council agreed to withdraw the Notice and all legal proceedings against them.

15. On the 15th May 2017 the Council rejected this offer;

16. Only four weeks later, on 13th June 2017, the Council withdrew the Notice. On 27th June 2017, one week before the High Court appeal hearing and two weeks after the Grenfell Tower tragedy, the Council withdrew all legal proceedings, and the High Court Appeal hearing was vacated.

17. From the time the Notice was served in April 2015 until the time the Notice was withdrawn on the 13th June 2017, more than two years later, the Council refused or ignored all attempts at reasonable negotiation (hence the full costs award in favour of the As in the Costs hearing in May 2016).

18. Written correspondence from the Leader, Nicholas Paget-Brown, shows that he and the former Cabinet members, authorised the Council’s appeals of both Magistrates’ Court decisions, despite the questionable legal merit of the Council’s position.

LEGAL FRAMEWORK

19. Issues relating to an alleged statutory nuisance under the Environmental Protection Act 1990 fall within the scope of the EIR: see e.g. GW v Information Commissioner [2014] UKUT 130 (AAC).

20. The EIR were enacted in compliance with the UK's obligations under Directive 2003/4/EC on access to environmental information. We draw the Council’s attention to the provision at the end of Article 4 of the Directive that:
(a) “The grounds for refusal mentioned in paragraphs 1 and 2 shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure.”

21. As noted above Council is obliged to make available on request environmental information which it holds as soon as possible, and within 20 days: see Regulation 5. The time limits for either providing the information, or for notifying a refusal and for stating the reasons for refusal (including any exception or exceptions relied upon) are mandatory. A failure to give reasons within the time limit is unlawful: at Birkett v Department for the Environment, Food and Rural Affairs [2012] P.T.S.R. 1299, at §18.

22. The Council is reminded that:

(i) There is a presumption in favour of disclosure: Regulation 12(2) of the EIR.

(ii) Legal professional privilege is not an exception to the Council’s duty to disclose environmental information: see GW v Information Commissioner [2014] UKUT 130 (AAC) at §52.

(iii) The disclosure of information relevant to judicial proceedings is at the heart of the constitutional principle of open justice: see the judgment of Toulson LJ in R. (Guardian News and Media Ltd) v City of Westminster Magistrates' Court [2013] Q.B. 618.

(iv) Even if one of the exceptions at Regulation 12(4) or (5) applies, information can only be withheld if the public interest in maintaining the exception outweighs the public interest in disclosing the information: Regulation 12(1).

DEFINITIONS

23. In the request for information below:

(i) References to “the Council” include elected members, present and former employees, servants and agents of the Royal Borough of Kensington and Chelsea (“RBKC”), including (but not limited to) Environmental Health Officers (“EHOs”), the former chief executive Nicholas Holgate, and elected councillors (former and current) and legal advisers;

(ii) References to “Council Officers” include present and former employees, servants and agents of the Royal Borough of Kensington and Chelsea including (but not limited to) environmental health officers and the former chief executive, Nicholas Holgate;

(iii) References to “the complainant” are to the neighbour, (includes one or other or both of the husband and wife), who lived next door to Mr and Mrs A. The complainant was the sole complainant in this dispute and provided evidence on the Council’s behalf in relation to Mr and Mrs A’s appeal against the Notice;

(iv) References to Mr and/or Mrs A refer to the Appellants in the EPA appeal proceedings (on whom the Notice was served), their counsel and any agents acting on their behalf;

(v) References to “communications” include all written communications and all responses, including electronic communication, between and / or involving one or more individuals;

(vi) References to “records” includes all documentary records however stored, formatted or presented, including electronically, and including (but not limited to) minutes, notes of meetings, file notes, council officers’ field notes, notes of communications and notes of conversations including telephone/digital conversations;

(vii) References to “the Property” concern piano practising and playing at the property of Mr and Mrs A in London;

(viii) References to “the Notice” relate to the noise abatement notice served on Mr and Mrs A under section 80(1) of the Environmental Protection Act 1990 under reference SRCON/14/148340;

(ix) References to “Legal proceedings” relate to the EPA appeal proceedings and / or the High Court appeal proceedings.

PUBLIC INTEREST IN DISCLOSURE

A background of events is provided to illustrate the public interest in disclosure.

24. Whether or not exemptions apply to the information requested, the public interest in disclosure is significant and includes:

(i) Understanding why the Council diverted vast public resources and taxpayer funds to a petty neighbour dispute which had limited prospects of success and which the Council ultimately lost;

(ii) Understanding why the judge in the Magistrates' Court proceedings awarded Mr and Mrs A their costs in full, when such an award can only be made if a public authority is found to be dishonest or unreasonable;

(iii) Understanding why the dispute escalated to the most senior levels of the Council, including the former Leader of the Council, Nicholas Paget-Brown, and the former Chief Executive, Nicholas Holgate;

(iv) Then, having lost their case in Magistrates’ Court, why decisions were made at the highest levels of the Council, including the former Leader Cllr Paget-Brown and the entire Cabinet, to escalate costs still further by appointing a QC to appeal the Magistrates' Court judgments to the High Court, only to abruptly withdraw the Notice and all legal proceedings on the eve of the High Court hearing and following the Grenfell Tower tragedy.

25. That such unsound, reckless, decisions were made at a significant cost to the taxpayer, the public interest is served by knowing if in fact the Council acted in accordance with the legal advice given to it.

26. What internal and external influences were brought to bear on the Council’s decision-making up through the most senior ranks of the Council, in this misguided decision to commit significant public resources and taxpayer funds to effectively ban two children from playing the piano in their family home at the behest of one complainant?

BACKGROUND RELEVANT TO THE PUBLIC INTEREST IN DISCLOSURE

The following paragraphs explain the background to the information requested. It is not necessarily in date order but rather is grouped according to specific incidents for which explanation is sought.

Council and Complainant Relationship

27. Between March 2014 and 7th April 2015 the complainant had submitted in excess of 67 complaints and emails to the Council about the classical piano playing in Mr and Mrs A’s home by their school-aged children. Council officers were consulting with and following directions given by the complainant from before the Notice was served in April 2015, until the Notice was withdrawn on the 13th June 2017. Throughout the duration of legal proceedings, between 7th April 2015 and the 28th June 2017, the Council consulted with, met with, and visited the home of the complainant.

Council Behaviour in Relation to Legal Letters and Letters From Third Parties

28. Mr and Mrs A appealed the Noise Abatement Notice on 22nd April 2015. Three letters were sent by Mr and Mrs A’s solicitor Oliver Fisher on the 5th May 2015, 12th May 2015, and 19th May 2015 addressed to Mr Raymond Asagba (senior EHO) seeking discussion and negotiation, and enquiring about the existence of acoustic recordings. All three letters were ignored, but for one automatically generated out-of-office reply.

29. On 16th July 2015 the Musicians’ Union wrote to Ms Seraphim (senior EHO responsible for serving the Notice) on behalf of Mr and Mrs A requesting that Ms Seraphim consider the needs and rights of their sons and review the terms of the Notice. The letter from the Musicians’ Union warned Ms Seraphim that under the restrictions of the Notice it would not be possible for the boys “…to continue with their music education to this level or to have a real chance of a future career in music.” This letter was ignored.

30. On 22nd July, 2015, Mr Stuart Whatmore, the Manager of the Council’s own Tri-borough Music Hub also wrote to Ms Seraphim, stating that the restrictions on the boys’ piano playing were “draconian” and he formally requested her assistance in coming to a “practical and sensible” balance of needs. This letter was ignored.

31. The Musicians’ Union letter and the Tri-borough Music Hub letter were copied and sent to the (former) Leader of the Council, Nicholas Paget-Brown, and other selected councillors, including Victoria Borwick (former ward councillor). There was no action from any of these councillors in respect of these letters.

Councillor Communications Prior to Magistrates’ Court Hearing in February 2016

32. In the absence of a response to the previous three letters sent to the senior officer Mr Asagba, Mr A wrote to the Leader of the Council, Cllr Nicholas Paget-Brown on the 22nd May 2015 requesting his involvement. Cllr Paget-Brown responded on the 28th May, 2015 with an undertaking to ask the environmental health department for a report on the background to its issuance of a Noise Abatement Notice. He took no further action. Mr and Mrs A never heard from Cllr Paget-Brown again until one year later (after the Magistrates' Court hearing) when he wrote to confirm his and the Cabinet’s support of the Council’s decision to appeal the judgments in their favour.

33. On the 17th June, 2015 Mr A sent a letter to Abingdon Ward councillors, Joanna Gardner and James Husband, and to Cllr Kim Taylor-Smith, ward councillor for Stanley Ward. Two weeks later on the 30th June, 2015, Ms Gardner responded on behalf of Mr Husband and herself, offering no assistance and misunderstanding the facts of the case. Cllr Gardner suggested that soundproofing should be investigated despite the fact that this had been dismissed as an option by senior RBKC environmental health officers.

34. Cllr Kim Taylor-Smith said in a telephone conversation with Mr A that he had discussed the matter with Cllr Husband, whom, he said, was well aware of the situation. Cllr Taylor-Smith warned Mr A to consider that he was using his personal money defending himself against the Council’s actions but that the Council was using taxpayers’ money.

35. On 10th September 2015 Mr A wrote to other selected councillors and on 26th September 2015, Mr and Mrs A attended Cllr Linda Wade’s open surgery at the suggestion of a mutual friend. Cllr Wade had made enquiries of the Environmental Health Department whom, she said, were defending their actions. Cllr Wade then communicated with Victoria Borwick (ward councillor and MP) on Mr and Mrs A’s behalf.

36. On 2nd October 2015 Mr and Mrs A attended a surgery with Victoria Borwick, who was both Member of Parliament for Kensington and Chelsea whilst still also Abingdon Ward councilor. Cllr Borwick undertook to communicate with Nicholas Holgate, the (former) Chief Executive of RBKC about this matter.

37. On 20th October, 2015 Mr A wrote to Mr Holgate to ask for a response to the Offer he and Mrs A had made to the Council on 17th September, 2015, and requested his assistance in putting an end to the Council’s irresponsible behaviour. Mr Holgate’s 4-line response on 23rd October, 2015, stated only “The Council’s Environmental Health Officers are the qualified professionals in relation to statutory nuisances and I cannot, nor do I have any intention, of modifying their determination. I regret I can offer no further help other than the response Councillor Borwick will have shared with you.”

Council Behaviour in Respect of Mr and Mrs A’s Request for Suspension or Relaxation of the Notice

38. At an interim hearing on 13th July, 2015, Mr and Mrs A made a request to the Magistrates' Court judge (District Judge Barrie) to suspend or relax the Notice whilst the complainant was away on vacation for the summer, particularly given that schools and music conservatoires were closed for the summer and Mr and Mrs A’s sons had nowhere else to practise. District Judge Barrie was willing to consent to relaxing the Notice, as an administrative matter, if the Council agreed.

39. The Council understood that the complainants were away over the summer and responded to Mr and Mrs A on the 15th July, 2015 that “….does not give us sufficient time to consult with the complainant given he is unavailable for a while.”

40. The Council awaited instructions from the complainant before responding that it would not relax or suspend the Notice stating “…given the problems caused…” .

41. Mr and Mrs A have never been told what these “problems caused” were (the piano in question had been played for twelve years without complaint) that warranted the Council’s behaviour and the Council’s decision to deny their sons their freedom to play the piano - District Judge Roscoe declared in her written judgment “play is absolutely an entitlement…”!

The Council’s Offer Dated 7th August 2015

42. On the 7th August 2015 Mr and Mrs A received an offer from the Council to settle the proceedings. The offer was wholly unacceptable and inappropriate. The Council acknowledged it was aware that Mr and Mrs A’s eldest son had left the family home to pursue tertiary education in the summer of 2015, and the Council understood that their youngest son did not return home from school until 7pm each day.

43. The Council went on to require that Mr and Mrs A’s youngest son (fourteen years old) who was studying GCSEs at a London day school at the time, practise piano at school and that he forsake after-school activities and commitments in order to meet some arbitrarily imposed and unreasonable demand that piano playing cease by 7.30pm.

Council’s Rejection of Offer (“the Offer”) from Mr and Mrs A Dated 7th Sept 2015

44. On the 17th September 2015, Mr and Mrs A submitted an offer to the Council on far more restrictive terms than was subsequently awarded to them by District Judge Roscoe in the EPA proceedings in Magistrates’ Court. Also, at the time of the offer, Mr and Mrs A were not seeking and had not suggested they would be seeking recovery of costs incurred up to that point in time.

45. This offer was outright rejected.

Counsel From Cornerstone Barristers

46. Around mid-July 2015, Mr Jack Parker of Cornerstone Barristers was appointed as counsel for RBKC.

47. The Council’s witness statements were submitted on 17th August 2015. These witness statements included under-oath statements by four environmental health officers, but only Mr Asagba attached the evidence of his field notes. The other three officers did not attach any evidence, but all three officers confirmed in under-oath testimony that they had prepared field notes and that their witness statements reflected their field notes.

48. On 17th September, 2015, Mr and Mrs A again requested information held by the Council, specifically complaints and confirmation of all environmental health officers’ site visits. There was no response to this request.

49. By 18th September, 2015, Mr Parker’s services had terminated. No other barrister was appointed in his place.

Threats of Adjournment - Witness Said to be Going on Maternity Leave

50. On 22nd October 2015 the Council responded to Mr and Mrs A’s offer to settle, dated 17th September, 2015, (referred to in paragraph 44) with a counter offer on worse terms than their own previous offer dated 7th August 2015 – where on the 7th August the Council suggested a finish time for piano practice of 7.30pm, this new offer on 22nd October required a more restrictive and arbitrarily imposed finish time of 7pm. On this same day, the 22nd October, the Council also notified the As’ counsel that one of the Council’s witnesses would be on maternity leave at the time of the hearing scheduled for 17th and 18th February 2016 and the suggestion was made that a twelve month adjournment of the hearing would be applied for.

51. A twelve month adjournment would have had the effect of denying Mr and Mrs A's sons the right to play the piano for another twelve months and would have been devastating to their musical progress, particularly their youngest son who was fourteen years old at that time.

52. On 3rd November 2015, the Council repeated the claim about maternity leave, and made email representations to Westminster Magistrates’ Court, that a witness would be on maternity leave on 17th and 18th February 2016.

53. This information was not correct. The hearing went ahead as scheduled on 17th and 18th February, 2016 and all council witnesses were present. It appears the Council was either seeking to delay the disposal of the case, or to apply pressure on Mr and Mrs A to accept the offer it had made on the 22nd October, 2015.

54. It is also noteworthy that at the date of the Council’s offer and their threat of a twelve month adjournment (22nd October, 2015) Mr Holgate also wrote his letter to Mr A, dated 23rd October, making it clear that he refused to intervene in the environmental health department’s actions (paragraph 37).

Acoustic Recordings

55. On 19th May 2015, Oliver Fisher, solicitors for Mr and Mrs A, enquired about acoustic recordings taken by the Council.

56. This enquiry was ignored.

57. In June 2015 Mr and Mrs A engaged the services of Dr Bullmore (Dr Andrew Bullmore from Hoare Lee) to carry out acoustic testing across the party wall, but Dr Bullmore was denied access to the complainant’s property.

58. The Council did not disclose the existence of its own sound recordings taken from the complainant’s property until 16th February 2016 (the afternoon before the hearing), and even then it only did so following repeated requests for the recordings from Mr and Mrs A’s counsel. It appears that the Council did not intend to disclose the existence of acoustic recordings, but the complainant had referred to these, likely inadvertently, in her witness statement. When finally on the day before the hearing, the Council disclosed the existence of recordings it claimed the recordings were corrupted. The Council refused Mr and Mrs A’s request to make that material available to their acoustic expert, Dr Bullmore, for analysis.

59. The Council relied on under-oath testimony in relation to these acoustic recordings which have never been produced.

The Council’s Offer to Settle on 10th February 2016

60. On the 10th February 2016, one week before the EPA appeal hearing, the Council made another offer to settle the proceedings. This offer was essentially identical to the offer previously rejected by Mr and Mrs A, made by the Council on the 22nd October 2015. Mr and Mrs A rejected this offer again.

61. The Council responded on the 15th February, two days before the hearing, with a marginally improved open offer to settle.

Council’s Appeal of Magistrates’ Court Decisions

62. Between the end of the Magistrates’ Court hearing on 18th February, 2016 and the conclusion of all legal proceedings on the 28th June 2017 council officers had continued to visit and communicate with the complainant.

63. The Council’s first application to appeal submitted on the 29th April 2016 (and later revised) did not appear to have been written by legal counsel. This application to appeal raised questions of “a private prosecution” which appeared to have no relevance to the ongoing Legal proceedings.

64. On the 23rd May 2016 the Council made an application to the Court to vacate the Hearing on Costs scheduled for the 27th May 2016 until after the High Court Appeal hearing. This application to adjourn was refused.

65. During the period between the Magistrates’ Court hearing and the Council’s withdrawal of its appeals to the High Court, and following the Council’s applications to appeal the judgment in their favour, Mr and Mrs A had made several written offers to the Council to settle the dispute and end all legal proceedings.

66. Mrs A wrote to the (former) Leader of the Council, Nicholas Paget-Brown on the 16th May 2016 (copied to all RBKC councillors) and 8th July 2016 requesting that he end this continued waste of private and public funds.

67. Mrs A had also written a personal note to Cllr Catherine Faulks (affiliated through their sons’ school) when enclosing this copied letter addressed to Cllr Paget-Brown.

68. Mrs A received an ill-informed response from Cllr Faulks on the 6th June 2016, in which Cllr Faulks defended the Council’s decision to appeal to the High Court and suggested that Mrs A consider soundproofing – despite the Council’s position (repeated in the Court judgment) that sound-proofing would not work.

69. Cllr Paget-Brown responded to Mrs A on 9th June 2016 and 20th July, 2016, making it clear that he, Councillor Ahern and the “Members”, approved of and authorized the Council’s continued expenditure on appealing the Magistrates’ Court judgments in Mr and Mrs A’s favour.

70. On 9th May 2017, Mr and Mrs A submitted an offer to the Council to donate a significant sum of money to vulnerable residents of the RBKC Community if the Council agreed to withdraw the Notice and all legal proceedings against them.

71. On the 15th May 2017 the Council rejected this offer.

72. Just under four weeks later, on the 9th June 2017, Mr A wrote to Cllr Nicholas Coleridge as the new Cabinet member for Environment, Environmental Health, Leisure and Arts to ask that he urge the Council to accept Mr and Mrs A’s offer to end legal proceedings. In this letter Mr A suggested that Cllr Coleridge’s brother, who was affiliated with the complainant through selected trustee positions, could possibly verify that there had been a material change in the complainant’s circumstances and the Council’s continuation of Legal proceedings was untenable.

73. The Grenfell tower tragedy occurred on the 13th June 2017 and on the 28th June 2017 the High Court proceedings were vacated.

INFORMATION REQUESTED (7th April 2015 to 4th July 2017)

74. Council and complainant communications and records:

(i) All communications, records, and records of communication between the complainant and the Council in relation to the Property and / or the Notice and / or the Legal proceedings;

(ii) All communications, records and records of communications between elected members and Council Officers (current or former) in relation to the Property and / or the Notice and / or Legal proceedings; and

(iii) The records of all meetings and / or site visits comprising any one or more Council Officers and / or elected councillors and / or the complainant, in relation to the Property and / or the Notice and / or Legal proceedings;

75. Acoustic recordings and EHO field notes

(iv) All records and communications in relation to the acoustic recordings in respect of the Property and / or the Notice;

(v) All records and communications in relation to all environmental health officers’ field notes including that of the first officer, Mr Dom Stagg, said to have visited the complainant’s property for 4 minutes at midday (12.36pm) on 14th April 2014 when the complainant was not home;

76. Appointment of counsel and legal advice

(vi) Legal advice given by counsel (including Mr Jack Parker from Cornerstone Barristers and Mr James Pereira QC from Francis Taylor Buildings) to the Council in respect of the Property and/ or the Notice and / or the Legal proceedings;

(vii) Records and communications held by the Council in respect of the termination of Mr Jack Parker’s services and the decision not to appoint another barrister;

77. Maternity Leave

(viii) Records and communications involving Council Officers in relation to pending maternity leave of a council witness. Specifically:

(a) why a twelve month adjournment was being sought; and

(b) why, in the event the witness concerned was able to attend on the date in question.

NEXT STEPS

78. Where the Council claims an exemption on the basis of the requester’s personal data or that of members of her family, then this information should be disclosed to the requester as a Subject Access Request. Consent forms will be sent separately confirming the requester’s authorisation to obtain information on behalf of other data subjects.

79. Where the Council claims exemptions on the basis of personal data of other data subjects, the Council is obliged to engage with redaction in accordance with Regulation 12(11).

80. The personal data of the complainants in this dispute is in the public domain and has been published widely between June 2015 and January 2018. The complainant has himself/herself courted publicity and recorded complaints on social media. Personal data that has not been previously published can be redacted.

81. As above, the EIR require that information to be made available as soon as possible, and at most within 20 days from the receipt of this request. I look forward to your prompt response.

Yours faithfully,
Mrs Carrabino

Dear Royal Borough of Kensington and Chelsea,

I submitted my FOI request to you on the 9th February 2018 and so the deadline for your response is today, 9th March 2018. I look forward to receiving your response by the close of business today. Thank you.

Yours faithfully,

Mrs Carrabino

Dear Royal Borough of Kensington and Chelsea,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Royal Borough of Kensington and Chelsea's handling of my FOI request 'RBKC Noise Abatement Notice'.

RBKC has not responded to my FOI request dated 9th February 2018. The Council is obliged to make available on request environmental information which it holds as soon as possible, and within 20 days: see Regulation 5. The time limits for either providing the information, or for notifying a refusal and for stating the reasons for refusal (including any exceptions relied upon) are mandatory. A failure to give reasons within the time limit is unlawful: at Birkett v Department for the Environment, Food and Rural Affairs [2012] P.T.S.R. 1299, at §18.

I anticipate your immediate attention to this request for an internal review. You are reminded that the public interest in disclosure of this information is significant and is detailed in paragraphs 24 to 26 of the FOI request.

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

Yours faithfully,

Mrs Carrabino

Lowther, Jason: CP-ICT: RBKC, Royal Borough of Kensington and Chelsea

Dear Mrs Carrabino

With respect to your request dated 9th February. I can confirm that this is being handled by the Environmental Health Team as a Subject access request. I understand that a response will be sent to you in the next few days.

Your sincerely

Jason Lowther
Senior Information Governance and Management Officer
Information Management
Information Technology
Royal Borough of Kensington and Chelsea || Westminster City Council

show quoted sections

Dear Lowther, Jason: CP-ICT: RBKC,

Thank you for your response.

RBKC ('the Council") is required to respond to this request under Environmental Information Regulations 2004 (“EIR”) and is required to consider an EIR request as if received from any member of the public.

The Council is obliged to make available on request environmental information which it holds as soon as possible, and within 20 days: see Regulation 5. The time limits for either providing the information, or for notifying a refusal and for stating the reasons for refusal (including any exception or exceptions relied upon) are mandatory. A failure to give reasons within the time limit is unlawful: at Birkett v Department for the Environment, Food and Rural Affairs [2012] P.T.S.R. 1299, at §18.

RBKC has exceeded this time limit. Please confirm as soon as possible:

(i) is the entirety of the information requested being refused under EIR Regulation 5(3) ie. the requester’s personal data; and
(ii) is no other exception being relied upon for the purpose of refusing disclosure of the requested information?

In summary (and as contained in the original FOI request) the information requested for the period from 7th April 2015 to 4th July 2017, is as follows:

1 Council and complainant communications and records:

(i) All communications, records, and records of communication between the complainant and the Council in relation to the Property and / or the Notice and / or the Legal proceedings;

(ii) All communications, records and records of communications between elected members and Council Officers (current or former) in relation to the Property and / or the Notice and / or Legal proceedings; and

(iii) The records of all meetings and / or site visits comprising any one or more Council Officers and / or elected councillors and / or the complainant, in relation to the Property and / or the Notice and / or Legal proceedings;

2 Acoustic recordings and EHO field notes

(iv) All records and communications in relation to the acoustic recordings in respect of the Property and / or the Notice;

(v) All records and communications in relation to all environmental health officers’ field notes including that of the first officer, Mr Dom Stagg, said to have visited the complainant’s property for 4 minutes at midday (12.36pm) on 14th April 2014 when the complainant was not home;

3 Appointment of counsel and legal advice

(vi) Legal advice given by counsel (including Mr Jack Parker from Cornerstone Barristers and Mr James Pereira QC from Francis Taylor Buildings) to the Council in respect of the Property and/ or the Notice and / or the Legal proceedings;

(vii) Records and communications held by the Council in respect of the termination of Mr Jack Parker’s services and the decision not to appoint another barrister;

4 Maternity Leave

(viii) Records and communications involving Council Officers in relation to pending maternity leave of a council witness. Specifically:

(a) why a twelve month adjournment was being sought; and

(b) why, in the event the witness concerned was able to attend on the date in question.

Your response to this FOI request is overdue and so I would be grateful for your immediate attention.

Yours sincerely,

Mrs Carrabino

Mrs Carrabino left an annotation ()

On the 16th November 2018, the Information Commissioner's Office ("ICO") issued a Decision Notice (attached) in which RBKC was found to have breached Regulations 5(1) and 5(2) of the EIR. RBKC was ordered to issue a substantive response to this EIR request.

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

RBKC issued a substantive response to the request under EIR on 13th December 2018. All of the information requested was refused. RBKC is relying on the following exceptions to refuse disclosure:

Regulation 12(5)(b) - course of justice;
Regulation 12(5)(f)(i),(ii) and (iii) - Interests of the person who provided the information to the public authority;
Regulation 13 and 12(3) of the Data Protection Act - Personal data
Regulation 12(4)(e) Internal communications and Legal Professional Privilege

On 9th January 2019 a response to RBKC’s response was submitted to ICO and is awaiting further action.

Mrs Carrabino left an annotation ()

Status Update of EIR Request Dated 9th February 2018:

RBKC Noise Abatement Notice

This request for information was submitted on 9th February 2018. Following a lengthy period of non-response, avoidance and obfuscation by RBKC regarding the information requested (see detailed timeline below) RBKC eventually responded as instructed by the Information Commissioner’s Office (“ICO”) (albeit late), explaining that it has amended its position and now seeks to rely on the “manifestly unreasonable” exception which allows a local authority to refuse an information request if it considers the burden of complying with the request too great.

In justifying its use of the “manifestly unreasonable” exception RBKC states that the information requested “relates to a neighbour dispute that is essentially private in character, and is of little wider public interest.“

RBKC then goes on to state:

“In undertaking a search for the information you requested we have examined each question from the request, and under each numbered question, we carried out the appropriate search using specific search terms within the period of 7 April 2015 – 4 July 2017. These search terms included:

(74) Council complainant communications & Records – Search term “Carrabino”


(75) Acoustic recordings and EHO field notes – Search terms “Acoustic" & “Recordings”

(76) Appointment of Counsel and Legal advice – Search term “names of legal advisers’

(77) Maternity Leave – Search term “Maternity”

We started to undertake this process and identified that from our Legal files and Environmental Health files alone, over 6000 results would need to be reviewed. “

This “private” neighbour dispute appears to have had a remarkable amount of council-wide attention both before the notice was served (see WhatDoTheyKnow “EIR Request for Evidence Behind S80 Noise Abatement Notice Served by RBKC” where RBKC claims to have found1243 items over 254 email accounts and 502 items relating to acoustic recordings) and throughout the duration of legal proceedings (another 6000 items) and so raises the question why so much of the council’s resources and hundreds of thousands of pounds of public funds were diverted to a matter RBKC now seeks to characterise as a “private” neighbour dispute.

Over this same period of time RBKC was ignoring the pleas for improved fire safety features from the concerned residents of the Grenfell Action Group who repeatedly raised fire safety concerns about Grenfell Tower prior to the tragedy.

RBKC’s handling of this request, its obfuscation and lack of responsiveness, raises significant questions about both the information requested and the council’s approach to accountability and transparency.

The timeline to date has been as follows:

9th February 2018

This EIR request (ie. an information request under Environmental Information Regulations) was submitted on the “WhatDoTheyKnow” website;

20th March 2018

RBKC responded that the Environmental Health team was treating the EIR request as a Subject Access Request (“SAR”). The council claimed that all the information requested was the personal data of the requestor and so subject to the Data Protection Act legislation, not EIR legislation;

26th March 2018

Following an internal review RBKC concluded that under the Data Protection Act legislation all information is exempt from disclosure;

10th April 2018

A complaint was submitted to ICO, highlighting that most of the information requested was not the requestor’s personal data and so should be responded to as an EIR request;

9th October 2018

The Data Protection Department of ICO supported RBKC and responded that under Data Protection legislation the requestor was not entitled to any of the information. At this point in time it appears that no one at ICO had ever seen the information requested (and as at today’s date, 11th August 2019, still hasn’t);

25th October 2018

A further complaint was submitted to ICO refuting that the request should be treated as a Subject Access Request, and eventually an ICO case officer from the FOI and EIR department was assigned to the complaint. The case officer then wrote to RBKC requesting that they issue a substantive response to the request treating it as an EIR request and not as a Subject Access Request;

16th November 2018

When RBKC did not respond, ICO served a Decision Notice ordering them to respond;

12th December 2018

Ms Joyce Golder from RBKC’s legal department then responded, as ordered, refusing all of the information requested citing EIR Regulations 12(5)(b) and 12(5)(f)(i),(ii) and (iii), Regulation 12(4)(a) and 12(4)(e), Regulation 12(3) Regulation 13, Regulation 14;

1st March 2019

When ICO questioned RBKC’s response and asked to see the information being refused, the ICO case officer was erroneously referred back to the request for information submitted in November 2015* (and since then requested again in November 2017 on What Do They Know “EIR Request for Evidence Behind S80 Noise Abatement Notice Served by RBKC”) which was for information collected over a different time period and is a request also being vigorously fought by RBKC .

2nd May 2019

ICO was satisfied that RBKC had incorrectly referred to a previous, closed, EIR request covering a different time period, and ICO then requested that RBKC submit the relevant information to ICO by 17th May 2019.

On or around the the 17th May deadline RBKC requested an extension of time to respond and this was granted.

30th May 2019.

As at 30th May RBKC had still not responded to ICO and so ICO served an Information Notice ordering a response by 28th June 2019.

28th June 2019

RBKC responded to ICO as ordered, and stated that it was amending its position with respect to this request and the second request “EIR Request for Evidence Behind S80 Noise Abatement Notice Served by RBKC”. The ICO case officer asked RBKC to notify the requestor of its amended position by 28th July 2019.

29th July 2019

RBKC responded to the requestor (late) that it was refusing the request in its entirety and was relying on the manifestly unreasonable exception set out in regulation 12(4)(b) of the Environmental Information Regulations 2004 (EIR).

* This information request had gone before the First Tier Tribunal and had been refused because it had been requested whilst legal proceedings were ongoing. There were grounds for appeal of this decision, but with legal proceedings over the information could be requested again.