Southwark Council - Information request
 
Our reference: 1702501  
 
 
Dear Mr Flynn,
 
Environmental Information Regulations 2004
 
Thank you for your request for information that was received on 31 January
2022.
 
We are dealing with your request under the Environmental Information
Regulations 2004 and we aim to send a response by 28 February 2022.
 
Your request: 
 
Please supply me with the closed report, with all and any appendices and
annexes, referred to in the minutes of the Council Cabinet Committee
meeting, 18 Jan 2021 (item 10, para 5) - 'Future of Aylesbury Estate'.

There is an overriding public interest in releasing this report, which
outweigh the reasons for exemption, as given under agenda item 23.

The cost of the Aylesbury regeneration to the Council and the impact this
will have on its finances and Housing Investment Programme is a matter
that should be subject to public scrutiny. Withholding the report
prejudices a proper consideration of the value of any deal the Council
might strike with developer Notting Hill Genesis.

I am making this request under Environmental Information Regulations.
 
The Environmental Information Regulations 2004 may restrict the release of
some or all of the information you have requested. We will carry out an
assessment and if any exceptions apply to some or all of the information
then we might not provide that information to you. We will inform you if
this is the case and advise you of your rights to request an internal
review and to complain to the Information Commissioner's Office.
 
We will also advise you if we cannot provide you with the information
requested for any other reason together with the reason(s) why and details
of how you may appeal (if appropriate).
 
Yours sincerely,
 
 
 
Martyna Plewniak
Senior Information Officer
Chief Executive's
020 7525 1585
[email address]
 
NOTE: Please do not edit the subject line when replying to this email.
 
Southwark Council
This email contains proprietary confidential information some or all of
which may be legally privileged and/or subject to the provisions of
privacy legislation. It is intended solely for the addressee.
If you are not the intended recipient, an addressing or transmission error
has misdirected this e-mail; you must not use, disclose, copy, print or
disseminate the information contained within this e-mail. Please notify
the author immediately by replying to this email.
Any views expressed in this email are those of the individual sender,
except where the sender specifically states these to be the views of
Southwark Council.
This email has been scanned for all viruses and all reasonable precautions
have been taken to ensure that no viruses are present. Southwark Council
cannot accept responsibility for any loss or damage arising from the use
of this email or attachments.

Southwark Council - Information request
 
Our reference: 1702501  
 
 
Dear Mr Flynn,
 
Environmental Information Regulations 2004
 
Thank you for your request received on 31 January 2022. 
 
Your request: 

Please supply me with the closed report, with all and any appendices and
annexes, referred to in the minutes of the Council Cabinet Committee
meeting, 18 Jan 2021 (item 10, para 5) - 'Future of Aylesbury Estate'.

There is an overriding public interest in releasing this report, which
outweigh the reasons for exemption, as given under agenda item 23.

The cost of the Aylesbury regeneration to the Council and the impact this
will have on its finances and Housing Investment Programme is a matter
that should be subject to public scrutiny. Withholding the report
prejudices a proper consideration of the value of any deal the Council
might strike with developer Notting Hill Genesis.

i am making this request under Environmental Information Regulations.)

I am writing to advise you that the time limit for responding to your
request for information under the Environmental Information Regulations
2004 needs to be extended.

The Regulations allow us 20 working days to respond to your request from
the date of its receipt.  However, it is occasionally necessary to extend
the 20 working day time limit for issuing a response.  In this case, I
regret that we must extend the time limit for responding by a further 5
working days because of the complexity of the request. We therefore hope
to let you have a response by 7 March 2022, and will keep you informed of
any further delay. 

We apologise sincerely for the delay and inconvenience it might have
caused.
 

Your rights

If you are dissatisfied with the handling of your request, you have the
right to ask for an internal review. You should request this review within
two months of receiving this response, by contacting
[1][Southwark Borough Council request email]. Please remember to quote the reference
number above in any future communications.

If you are not content with the outcome of your appeal you may apply
directly to the Information Commissioner for a decision. Generally, the
Information Commissioner cannot make a decision unless you have first
exhausted our internal appeal procedure and you should contact her within
two months of the outcome of the internal review. Further information on
the Freedom of Information Act is available through the Information
Commissioner's website at [2]www.ico.org.uk

Yours sincerely, 
 
 
Martyna Plewniak
Senior Information Officer
Chief Executive's
020 7525 1585
[email address]
 
NOTE: Please do not edit the subject line when replying to this email.
 
Southwark Council
This email contains proprietary confidential information some or all of
which may be legally privileged and/or subject to the provisions of
privacy legislation. It is intended solely for the addressee.
If you are not the intended recipient, an addressing or transmission error
has misdirected this e-mail; you must not use, disclose, copy, print or
disseminate the information contained within this e-mail. Please notify
the author immediately by replying to this email.
Any views expressed in this email are those of the individual sender,
except where the sender specifically states these to be the views of
Southwark Council.
This email has been scanned for all viruses and all reasonable precautions
have been taken to ensure that no viruses are present. Southwark Council
cannot accept responsibility for any loss or damage arising from the use
of this email or attachments.

References

Visible links
1. mailto:[Southwark Borough Council request email]
2. http://www.ico.org.uk/

Southwark Council - Information request 
 
Our reference: 1702501  
 
 
Dear Mr Flynn,
 
Environmental Information Regulations 2004
 
Thank you for your request received on 31 January 2022 concerning:
 
Please supply me with the closed report, with all and any appendices and
annexes, referred to in the minutes of the Council Cabinet Committee
meeting, 18 Jan 2021 (item 10, para 5) - 'Future of Aylesbury Estate'.

There is an overriding public interest in releasing this report, which
outweigh the reasons for exemption, as given under agenda item 23.

The cost of the Aylesbury regeneration to the Council and the impact this
will have on its finances and Housing Investment Programme is a matter
that should be subject to public scrutiny. Withholding the report
prejudices a proper consideration of the value of any deal the Council
might strike with developer Notting Hill Genesis.

i am making this request under Environmental Information Regulations.
 

I am writing to advise you that the time limit for responding to your
request for information under the Environmental Information Regulations
2004 needs to be extended.

The Regulations allow us 20 working days to respond to your request from
the date of its receipt.  However, it is occasionally necessary to extend
the 20 working day time limit for issuing a response.  In this case, I
regret that we must extend the time limit for responding by a further 5
working days because of the complexity of the request. We, therefore, aim
to provide you with a response by 14 March 2022, and will keep you
informed of any further delay. 

We apologise sincerely for the delay and inconvenience it might have
caused.
 

Your rights

If you are dissatisfied with the handling of your request, you have the
right to ask for an internal review. You should request this review within
two months of receiving this response, by
contacting [1][Southwark Borough Council request email]. Please remember to quote the
reference number above in any future communications.

If you are not content with the outcome of your appeal you may apply
directly to the Information Commissioner for a decision. Generally, the
Information Commissioner cannot make a decision unless you have first
exhausted our internal appeal procedure and you should contact her within
two months of the outcome of the internal review. Further information on
the Freedom of Information Act is available through the Information
Commissioner's website at [2]www.ico.org.uk

Yours sincerely, 
 
 
Martyna Plewniak
Senior Information Officer
Chief Executive's
020 7525 1585
[email address]
 
 
 
 
Southwark Council
This email contains proprietary confidential information some or all of
which may be legally privileged and/or subject to the provisions of
privacy legislation. It is intended solely for the addressee.
If you are not the intended recipient, an addressing or transmission error
has misdirected this e-mail; you must not use, disclose, copy, print or
disseminate the information contained within this e-mail. Please notify
the author immediately by replying to this email.
Any views expressed in this email are those of the individual sender,
except where the sender specifically states these to be the views of
Southwark Council.
This email has been scanned for all viruses and all reasonable precautions
have been taken to ensure that no viruses are present. Southwark Council
cannot accept responsibility for any loss or damage arising from the use
of this email or attachments.

References

Visible links
1. mailto:[Southwark Borough Council request email]
2. http://www.ico.org.uk/

Dear Mr Flynn,

Re: Your request for information: 1702501

Thank you for your request for information that was received on 1 February
2022.

Your request

Please supply me with the closed report, with all and any appendices and
annexes, referred to in the minutes of the Council Cabinet Committee
meeting, 18 Jan 2021 (item 10, para 5) - 'Future of Aylesbury Estate'.

There is an overriding public interest in releasing this report, which
outweigh the reasons for exemption, as given under agenda item 23.

The cost of the Aylesbury regeneration to the Council and the impact this
will have on its finances and Housing Investment Programme is a matter
that should be subject to public scrutiny. Withholding the report
prejudices a proper consideration of the value of any deal the Council
might strike with developer Notting Hill Genesis.

I am making this request under Environmental Information Regulations

Please accept our sincere apologies for the delay in responding to your
request.

Your request has been considered under the Environmental Information
Regulations 2004 (EIR). The information requested is ‘environmental
information’ as it meets the definition set out in regulation 2 (1) (c) of
the EIR. This covers “measures (including administrative measures), such
as policies, legislation, plans, programmes, environmental agreements, and
activities affecting or likely to affect the elements and factors referred
to in  2(1) (a) and (b)” including water, soil, land and landscape “as
well as measures or activities designed to protect those elements”. As
such it must be considered for disclosure under the terms of the EIR
rather than the Freedom of Information Act 2000.

There is always a general public interest in disclosure, deriving from the
purpose of EIR. There may also be a public interest in transparency about
the issue the information relates to. Arguments in favour of disclosure of
the specific information should also be considered.

Our response

Please see the attached, redacted version of the closed report.

After careful consideration, we withhold some of the information falling
under your request as shown on the attached document.

We withhold these under the following exemptions:

·            12 (5) (b) regarding legal professional privilege;

·            and 12 (5) (e) regarding confidentiality of commercial or
industrial information;

In deciding to withhold this information we have consulted with Notting
Hill Genesis as required by the Code of Practice.  We have also applied
the Public Interest Test as required by the Regulations.

By way of explanation, the ‘public interest’ is not the same as what might
be of interest to the public. In carrying out a Public Interest Test we
consider the greater good or benefit to the community as a whole if the
information is released or not. The ‘right to know’ must be balanced
against the need to enable effective government, deliver efficient
policing and to serve the best interests of the public. The EIR are
‘applicant blind’. This means that we cannot, and do not, ask about the
motives of anyone who asks for information. In providing a response to one
person, we are expressing a willingness to provide the same response to
anyone.

After assessing all the considerations pertinent to the circumstances of
this request, we consider that the balance of the public interest favours
maintaining the disclosure-exception provisions under regulation 12(5) (b)
and 12(5) (e) relevant to the remaining information at this time.

Regulation 12(5) (b)

We strongly believe that it is always in the public interest to withhold
advice between parties and their legal advisers.

Regulation 12(5) (e)

The confidentiality is provided by law to protect legitimate economic
interests within the meaning of exception 12(5) (e). Disclosure would
adversely affect that confidentiality and damage the economic interests
which we have identified. Our conclusion is that the confidentiality
exception is therefore engaged.

We are however mindful of the views of the Information Commissioner (ICO)
in regards to how this exception provision is engaged and applied, and we
have also taken note of the recent decision by the Information Tribunal
(EA/2013/0162) in particular paragraph 42 which states:

‘The legislature must be taken to intend that it is not always in the
public interest for a public authority to choose to keep information
confidential. There is no breach of trust when a public authority fulfils
its statutory obligation under FoIA or EIR… They recognise in contracts
that in an individual case, depending on the circumstances, the public
authority may have a duty to disclose.’

In applying this exemption we have considered the following:

1.          It is not enough that disclosure should simply affect [the
interests referred to in the exception]; the effect must be “adverse”.

2.          Refusal to disclose is only permitted to the extent of that
adverse effect.

3.          It is necessary to show that disclosure “would” have an
adverse effect - not that it could or might have such effect.

4.          Even if there would be an adverse effect, the information must
still be disclosed unless “in all the circumstances of the case, the
public interest in maintaining the exception outweighs the public interest
in disclosing the information”. 

The scheme is a major regeneration partnership between Southwark council
and Notting Hill Genesis.  We are strongly of the view that disclosure
would cause harm to the commercial interests of both Southwark Council and
Notting Hill Genesis; and that these can be considered to be legitimate
economic interests. In relation to the legitimate economic interests, we
would make reference to the Information Commissioner’s guidance, which
states:

‘Legitimate economic interests could relate to retaining or improving
market position, ensuring that competitors do not gain access to
commercially valuable information, protecting a commercial bargaining
position in the context of existing or future negotiations, avoiding
commercially significant reputational damage, or avoiding disclosures
which would otherwise result in a loss of revenue or income’.

The release of the information falling within this category would:

·       affect commercial negotiating position

·       affect ability to engage with third parties

·       create confusion as to affect commercial reputation

·       delay implementation of or frustrate  the development

Considerations favouring disclosure:

We acknowledge that there is a general public interest in fostering
accountability and transparency in respect of planning and development
matters and particularly Southwark Council’s decision making behind, and
progress of, developments of this size and impact.

In considering the public interest in this case, we are mindful of
regulation 12(2) of the EIR instructing authorities to apply a presumption
in favour of disclosure. There is an underlying rationale supporting the
disclosure of environmental information, as outlined in Directive
(2003/4/EC)3 which gave rise to the Environmental Information Regulations;

‘Increased public access to environmental information and the
dissemination of such information contribute to a greater awareness of
environmental matters, a free exchange of views, more effective
participation by the public in environmental decision making and,
eventually, to a better environment’.

Given the number of people affected, there is a strong public interest in
release of information that informs and engages public debate on issues
pertinent to the development programme to reassure the public that the
Southwark Council has considered the most appropriate options. Disclosure
would inform scrutiny of the approach adopted by Southwark Council to
negotiate maximum benefit from this development.

Considerations favouring non-disclosure:

Whilst guidance published by the Information Commissioner acknowledges
there is no automatic or inherent public interest in withholding internal
communications it also states that 'Public interest arguments’ should be
focussed on protecting the public authority’s ‘private thinking space.’

Southwark Council and Notting Hill Genesis should be allowed the necessary
room to think in private and have a “safe space” in which to have
discussions to develop and explore a full range of options, enabling us to
make effective decisions to achieve maximum benefit for the parties and
for the public from the development.

Whilst it is only right that a scheme of this size, scale and impact,
receives a high level of public scrutiny, it is vital that stakeholders
can engage and discuss ideas, strategies and progress candidly. The scheme
is expected to take a number of years to reach conclusion and it is
important to protect the space to carry out such discussions for them to
be effective.

In Information Tribunal decision (EA/2013/0162), the courts recognised the
enduring strength of the public interest in maintaining the confidentially
of negotiations that take place in relation to public/private sector
partnerships:

Once you use private sector profit making organisations in order to help
fund regeneration and to deliver infrastructure, social housing and other
public goods, then inevitably considerations of commercial confidentiality
and the need to avoid harm to commercial interests must be given full
weight when assessing the public interests for and against disclosure

In that case, the Tribunal balanced the public interest with particular
consideration to the public interest in ensuring projects are not allowed
to fail or be put into jeopardy, in public participation in decision
making, and in avoidance of harm to commercial interests. It is important
to note the reliance of local communities on public / private sector
partnerships to deliver affordable housing. There is a strong public
interest in these developments succeeding and not being undermined.

The best interests of the public – i.e. the public interest – are served
by ensuring that public authorities can deliberate robustly and
comprehensively, consider all options and potential impacts, to reach the
best possible decision. It is therefore in the public interest that the
space to assess proposals fully is protected.

Whilst developers have a clear interest in sharing appropriate information
in support of their applications, publishing sensitive information shared
with Southwark Council under an expectation of confidentiality would deter
partners from sharing similar information in the future. This is
particularly if they felt that Southwark Council would not treat
information that could harm their economic interests with due care. This
would ultimately lessen the information available to Southwark Council,
thereby impacting our ability to form such partnerships.

It is the council’s intention that following the satisfactory completion
of the agreement to vary the Development Partnership Agreement, the
council will make public those elements of the agreement that are no
longer confidential at that point.

Your rights

If you are dissatisfied with the handling of your request, you have the
right to ask for an internal review. You should request this review within
two months of receiving this response, by contacting
[1][Southwark Borough Council request email]. Please remember to quote the reference
number above in any future communications.

If you are not content with the outcome of your appeal you may apply
directly to the Information Commissioner for a decision. Generally, the
Information Commissioner cannot make a decision unless you have first
exhausted our internal appeal procedure and you should contact her within
two months of the outcome of the internal review. Further information on
the Freedom of Information Act is available through the Information
Commissioner’s website at [2]www.ico.org.uk

Yours sincerely,

Martyna Plewniak

Senior Information Officer

The email you received and any files transmitted with it are confidential,
may be covered by legal and/or professional privilege and are intended
solely for the use of the individual or entity to whom they are addressed.

If you have received this in error please notify us immediately.

If you are not the intended recipient of the email or the person
responsible for delivering it to them you may not copy it, forward it or
otherwise use it for any purpose or disclose its contents to any other
person. To do so may be unlawful.

Where opinions are expressed in the email they are not necessarily those
of Southwark Council and Southwark Council is not responsible for any
changes made to the message after it has been sent.

References

Visible links
1. mailto:[Southwark Borough Council request email]
2. http://www.ico.org.uk/

Dear Mr Flynn,

Your request for information: 1702501

Thank you for your request for information that was received on 1 February
2022 and your subsequent request for an internal review .

Your original request:

Please supply me with the closed report, with all and any appendices and
annexes, referred to in the minutes of the Council Cabinet Committee
meeting, 18 Jan 2021 (item 10, para 5) - 'Future of Aylesbury Estate'.

There is an overriding public interest in releasing this report, which
outweigh the reasons for exemption, as given under agenda item 23.

The cost of the Aylesbury regeneration to the Council and the impact this
will have on its finances and Housing Investment Programme is a matter
that should be subject to public scrutiny. Withholding the report
prejudices a proper consideration of the value of any deal the Council
might strike with developer Notting Hill Genesis.

I am making this request under Environmental Information Regulations

Your request for internal review following receipt of the authority
response:

Southwark has only supplied a redacted version of the report requested. 
My request was for the full report and any appendices and annexes,

Southwark cites two exemptions relating to professional privilege  and
commercial confidentiality and the balance of public interest to justify
the redactions.  In response I note that a previous cabinet report on
financial arrangements between Southwark and Notting Hill Genesis, for an
earlier phase of the Aylesbury redevelopment, was published in its
entirety, with costs and figures and without the need for an FOI request.

('Aylesbury Regeneration Programme: Delivery of new council homes on the
First Development Site' 14 July 2020).

Southwark also acknowledges that there is 'a strong public interest in
release of information that informs and engages public debate on issues
pertinent to the development programme to reassure the public that the
Southwark Council has considered the most appropriate options'.  This is
certainly the case, but Southwark does not give it sufficient weight in
the decision to withhold information falling under this request.

I also note that Southwark's cabinet member for finance, performance and
democracy has said in the local press that the full report, without
redactions, will be published once the revised Development Partnership
Agreement with Notting Hill Genesis is agreed (Southwark News, 24 March
2022).

Having reviewed the process used to formulate the response to your initial
request, I uphold the decision to issue the redacted version of the full
cabinet report for the reasons stated in the response sent on Monday 14^th
March. The decision to apply those redactions was made using the following
exemptions.

·            12 (5) (b) regarding legal professional privilege;

·            and 12 (5) (e) regarding confidentiality of commercial or
industrial information;

A full explanation of the exemptions was included within the initial
response.

Paragraph 4 of the report recommends that “the Councils Cabinet delegates
authority to negotiate and approve a proposal for a further variation to
the Development Partnership Agreement (DPA) with Notting Hill Genesis to
the Strategic Director of Housing and Modernisation in consultation with
the Strategic Director of Finance and Governance, the Leader and relevant
Cabinet members and to conclude that variation.”

My apologies for the delayed response to your request for an internal
review but I had hoped that the revised DPA would be finalised by now and
that I could include a link in this response. However, it is not yet
finalised although I understand it is due to be completed shortly.

Once finalised, the intention remains to publish the  DPA which will then
meet the conditions of your original request.  However, specific parts or
sections of the DPA will not be published or released until the revised
DPA is complete.

Appeal Rights

If you are dissatisfied with this decision you have recourse to the
Information Commissioner.  You should contact him within 2 months of this
response.  Contact details are:

Wycliffe House
Water Lane
Wilmslow SK9 5AF
Telephone: 0303 123 1113
Website: [1]www.ico.org.uk

Yours sincerely,

Andy Snazell

Emergency Planning and Resilience Manager

Chief Executives Office

London Borough Southwark

Andy Snazell

Emergency Planning and Resilience Manager

Chief Executives Office

London Borough Southwark

The email you received and any files transmitted with it are confidential,
may be covered by legal and/or professional privilege and are intended
solely for the use of the individual or entity to whom they are addressed.

If you have received this in error please notify us immediately.

If you are not the intended recipient of the email or the person
responsible for delivering it to them you may not copy it, forward it or
otherwise use it for any purpose or disclose its contents to any other
person. To do so may be unlawful.

Where opinions are expressed in the email they are not necessarily those
of Southwark Council and Southwark Council is not responsible for any
changes made to the message after it has been sent.

References

Visible links
1. https://urldefense.com/v3/__http:/www.ic...

Thank you for your e-mail. Im now on leave until  Monday 20th June.

If your enquiry cannot wait until my return please contact
[email address].

The email you received and any files transmitted with it are confidential,
may be covered by legal and/or professional privilege and are intended
solely for the use of the individual or entity to whom they are addressed.

If you have received this in error please notify us immediately.

If you are not the intended recipient of the email or the person
responsible for delivering it to them you may not copy it, forward it or
otherwise use it for any purpose or disclose its contents to any other
person. To do so may be unlawful.

Where opinions are expressed in the email they are not necessarily those
of Southwark Council and Southwark Council is not responsible for any
changes made to the message after it has been sent.

Dear Mr Flynn,

Apologies for not responding sooner- I had a few days away on an external training event.

My understanding is that if possible, the intent is to publish the DPA without redaction. The caveat being that if there is information of a sensitive nature we may be obliged to redact. I'm sorry but I don’t have confirmation regarding the time scale of issue but will try and confirm with you at the earliest opportunity.

I've requested an update from colleagues in regeneration so I can get that information for you.

Kind regards

Andy Snazell
Emergency Planning and Resilience Manager
Chief Executives Office
London Borough Southwark

show quoted sections

Dear Mr Flynn

Further to your correspondence with the ICO and with reference to
paragraph 6 of the [1]open report dated 30 March 2023 stating that it has
not proved possible to agree the detail of the variation, I confirm that
the council remains unable to publish in full the closed report you
requested.

However, I am able to provide you with an updated redacted report, as
attached.

Kind Regards

Hayley Marsh

Corporate Information Governance Manager

 
Southwark Council
This email contains proprietary confidential information some or all of
which may be legally privileged and/or subject to the provisions of
privacy legislation. It is intended solely for the addressee.
If you are not the intended recipient, an addressing or transmission error
has misdirected this e-mail; you must not use, disclose, copy, print or
disseminate the information contained within this e-mail. Please notify
the author immediately by replying to this email.
Any views expressed in this email are those of the individual sender,
except where the sender specifically states these to be the views of
Southwark Council.
This email has been scanned for all viruses and all reasonable precautions
have been taken to ensure that no viruses are present. Southwark Council
cannot accept responsibility for any loss or damage arising from the use
of this email or attachments.

References

Visible links
1. https://moderngov.southwark.gov.uk/docum...