Triangle Field Hungerford - inclusion in SHLAA

The request was partially successful.

Dear West Berkshire Council,

Further to the inclusion of the Triangle Field in the updated SHLAA ( Dec 2013) please could you supply the following information:

1. All information held regarding the possible sale/acquisition of the Triangle Field.

2. All information held regarding inclusion of the Triangle Field in the SHLAA. I am particularly interested to know who put the field forward ( the reference to the "owner" seems a little disingenuous, given that the Field is ( or was) owned by West Berkshire Council, and why they believed it would become available for development in 15 years time, given that the current lease to Hungerford Town Council ( from West Berkshire Council) has an option for a further 50 years extension.

3. Any proposals for non-housing development on the Field.

You will be aware that I have made a previous request about the Triangle Field (March 2013) including documents held at that time relating to a purchase enquiry from Hungerford Town Council. Documents were identified but refused due to the ongoing nature of the discussions. Presumably these can now be released, preferably without redactions, together with any further information generated since.

Many thanks.

Yours faithfully,

J A Giggins

J A Giggins left an annotation ()

Previous request can be found here:

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

Refusal of the documents regarding the discussions with Hungerford Town Council can be found here:

https://www.whatdotheyknow.com/request/1...

Suzanne Kenchington, West Berkshire Council

FoI/2014/114

 

Dear Mrs Giggins,

 

Request for information: Triangle Field Hungerford - inclusion in SHLAA

 

Thank you for your request received 29.01.2014; we will seek to respond
within twenty working days.

 

Yours sincerely,

 

Suzi Kenchington 

Information Support Officer

Strategic Support,

West Berkshire Council, Council Offices, Market Street, Newbury, RG14 5LD

email:  [1][email address]

' 01635 519860 (external)      '  2860 (internal)      

P Do you really need to print this email?

 

show quoted sections

Sue Broughton, West Berkshire Council

FoI/2014/114

Dear Mrs Giggins,

Request for information: Triangle Field Hungerford - inclusion in SHLAA

You have requested:

1. All information held regarding the possible sale/acquisition of the Triangle Field.

The land known as Triangle Field was originally controlled by the Housing Services Department of the council but the land was retained by the District Council when the Housing Association was formed, the land originally having been purchased by Hungerford Rural District Council as part of the Priory Housing Scheme.

It was then, and currently still is, outside the Hungerford Settlement area

Historically the Triangle field was let to Lady Wills from 1965 under an agricultural tenancy at an initial rent of £43 p.a. but no agreement can be traced, the tenant continued on a year to year basis up until 1991 when the rent was £596.25 p.a.

On 18 December 1991 a Deed of surrender was entered into such that the Council took back the field with a view to leasing it to the Town Council in accordance with the Newbury District Council Finance and Property Sub Committee .

The lease granted was for a period of 50 years with an option to renew for a further 50 years at a nominal rent the use to be restricted to public open space for recreation use together with appropriate ancillary buildings.

The actual lease is dated 10 September 1992 and the rent payable is £5 p.a.

In May 2012 the Town Council enquired whether they could acquire the freehold of the Triangle Field via an email to the then Portfolio Member for Property, and the matter was put on the next Asset Management Group Agenda in June 2012, the enquiry appearing to emanate from the Town Council because of works they were proposing to the changing rooms, and a response put back to the Town Council was that the lease gave the Town Council the ability to carry out works with the District Council's consent.

At a later Asset Management group meeting on 17 September 2012 it was agreed that Colin Broughton could explore the possible freehold disposal to the Town Council, and that a jointly funded valuation should be undertaken.

In October 2012 Carter Jonas were requested to give details of their terms for carrying out a valuation and subsequently instructed to proceed and produced a valuation report dated 1 April 2013 which included provision for a clawback in the event that the Town Council ever sold the land on for a more valuable use.

I am discussing the correspondence held, as most of this emanates from the Town Council, and we are required to consult before supplying it. We will complete this section of the request shortly, currently we are applying the provision at S17(2) of the Freedom of Information Act 2000 which permits the authority to extend the timescale for responding to a request while considering the application of an exemption, in this case the exemption at S43(2) (commercial interests) of the Freedom of information Act 2000. I would hope to be able to respond regarding the remainder of your request by the end of next week. For the avoidance of doubt therefore I would emphasise that the authority has NOT yet completed its response to your request.

2. All information held regarding inclusion of the Triangle Field in the SHLAA. I am particularly interested to know who put the field forward ( the reference to the "owner" seems a little disingenuous, given that the Field is ( or was) owned by West Berkshire Council, and why they believed it would become available for development in 15 years time, given that the current lease to Hungerford Town Council ( from West Berkshire Council) has an option for a further 50 years extension.

At the Asset Management Group meeting on 12 September 2013 it was decided that West Berkshire District Council should not dispose of the freehold, as had been discussed, but that a request should be submitted for the site to be included in the Strategic Housing Land Availability Assessment (SHLAA), and on 7 October 2013 Colin Broughton duly submitted an application to the Planning Department.

The minute of the Asset Management Group dated of 12 September 2013 reads :

‘The Triangle Field – it was agreed that a sale of the freehold is not progressed as the amount offered is too low. Officers to make a proposal that the land is included in call for sites the Strategic Housing Land availability Assessment (SHLAA).’

The site was submitted for consideration in the SHLAA by West Berkshire Council (in fact the proposal to submit it was made by one of the Councillors, not by the officers) with a view to the site being considered for residential use in the long term, as it is subject to a lease to Hungerford Town Council until 2042 with an option to renew. The SHLAA should state that the site will not be available in the next 15 years because of the long term lease, and this will be made clearer when we make a number of corrections and amendments to the document.

The site was assessed as not currently developable in the SHLAA.

3. Any proposals for non-housing development on the Field.

None known.


Yours sincerely

Sue Broughton
Information Management Officer
Please note that I work part time and messages may not be answered until I am next in the office.
  Strategic Support West Berkshire Council, Council Offices, Market Street, Newbury RG14 5LD
Email:  [email address]
' 01635 519747 (external)      '   2747 (internal) You should be aware that all emails received and sent by this Council are subject to the Freedom of Information Act 2000 and therefore may be disclosed to a third party.
P Please consider the environment before printing this e-mail

show quoted sections

Dear Sue Broughton,

Many thanks for this partial narrative response. I look forward to receiving the remainder of the information, together with copies of the minutes and documents you have referred to ( redacted if necessary).

Yours sincerely,

J A Giggins

Dear Sue Broughton,

Further to my response of 26 February, I have researched s36(2) and found the following document which may help you in deciding whether you can rely on S36(2).

http://www.justice.gov.uk/downloads/info...

The paragraph below would seem to support the case for disclosure:

"Commercial' can be taken to mean relating to an activity in the way of a business, trade or profession. Again, the exemption is expressly capable of applying not only to the commercial interests of outside organisations, but also to a public authority's own commercial interests. When it comes to considering a public authority's own interests, a range of circumstances may be relevant, including the authority's position in the market place both as a purchaser and as a supplier. However, the prejudice to the commercial interests of a public authority must be contrasted with prejudice to other interests such as the body's political or other non-commercial reputational interests, which are not protected by this exemption."

Yours sincerely,

J A Giggins

Sue Broughton, West Berkshire Council

 I work part-time and am out of the office on the afternoon of 28th
February. For urgent matters please email Suzi Kenchington
[email address] who will be able to pass your email to a
senior officer. Requests for information should be sent to
[West Berkshire Council request email] and complaints to [email address]

show quoted sections

Dear Sue Broughton,

Apologies - the link and extract relate to s43(2) not s 36.

Yours sincerely,

J A Giggins

J A Giggins left an annotation ()

The site in question is allocated a reference of HUN027 in the 2013 SHLAA.

http://www.westberks.gov.uk/CHttpHandler...

J A Giggins left an annotation ()

Non housing development, extract below taken from Hungerford Town Council R&A committee minutes:

http://www.hungerford.uk.net/councilmain...

13 Theatre Company siting of containers – The containers are currently sited on David Liddiard’s land under a temporary licence which runs out at the end of February. Cllr Crane proposed that HTC support the re-siting of the containers on the Triangle Field subject to lease agreement and permission from WBC, seconded by Cllr Benneyworth, 1 abstention, rest in favour.

Sue Broughton, West Berkshire Council

5 Attachments

FoI/2014/114

Dear Mrs Giggins,

Request for information: Triangle Field Hungerford - inclusion in SHLAA

I have now obtained the remaining information to answer your request. Some information is being refused for the reasons given in the reply.

You have asked for:

1. All information held regarding the possible sale/acquisition of the Triangle Field.

Please see attached the exchanges of emails between West Berkshire Council. Hungerford Town Council and Carter-Jonas regarding the possible acquisition of the Triangle Field. Please see also the edited minutes of the Asset Management Group meetings held on 12th June 2012, 17th September 2012 and 12th September 2013. Other information was sent in response to your previous request, and in response to this request on 26th February 2014.

After consideration the authority is refusing the valuation terms of reference letter sent to Carter-Jonas and the valuation sent in return, both of which were supplied to the authority by Hungerford Town Council, and a single section of one sentence in the minutes mentioned above (17th September 2012) which also refers to valuation. This refusal is made under the provisions of S43(2). A discussion about or information on the valuation of the land in question is clearly commercial in nature and therefore falls within the provisions of this exemption.

As far as public interest is concerned, whilst the authority recognises that publication of the valuation letter, alongside the other information requested which confirms this land has been placed on the SHLAA, may lead to developer interest and the possibility of a sale, it would seriously prejudice the authority's ability to negotiate a preferential price for the land at any time in the near future, should the authority be approached by a possible purchaser. The authority seeks to obtain value for money for its assets, and seeks to ensure the overall financial probity of its negotiations. Both would be prejudiced to the detriment of the authority and its tax payers by the publication of this valuation.

A copy of the relevant exemption and the public interest test is attached.

2. All information held regarding inclusion of the Triangle Field in the SHLAA. I am particularly interested to know who put the field forward ( the reference to the "owner" seems a little disingenuous, given that the Field is ( or was) owned by West Berkshire Council, and why they believed it would become available for development in 15 years time, given that the current lease to Hungerford Town Council (from West Berkshire Council) has an option for a further 50 years extension.

Attached is a copy of the edited minutes of the Asset Management Group meeting held on 12th September 2013 at which this property was put forward. The content of this minute was explained in my email of 26th February 2014.

3. Any proposals for non-housing development on the Field.
This was answered in my email of 26th February 2014.

Please note, could correspondence regarding any FoI request be supplied to [West Berkshire Council request email] which is the official FoI email address for the authority. Sending emails to me personally may delay a response as I work part time.

This completes your request. If you are dissatisfied with our response, you may ask for an internal review. Please explain fully your reasons for requesting a review. You should contact David Lowe, Scrutiny & Partnerships Manager, Strategic Support, Council Offices, Market Street, Newbury RG14 5LD, email [email address] if you wish to request a review. If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF www.ico.gov.uk


Yours sincerely

Sue Broughton
Information Management Officer
Please note that I work part time and messages may not be answered until I am next in the office.
  Strategic Support West Berkshire Council, Council Offices, Market Street, Newbury RG14 5LD
Email:  [email address]
' 01635 519747 (external)      '   2747 (internal) You should be aware that all emails received and sent by this Council are subject to the Freedom of Information Act 2000 and therefore may be disclosed to a third party.
P Please consider the environment before printing this e-mail

show quoted sections

Dear West Berkshire Council,

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

I am writing to request an internal review of West Berkshire Council's handling of my FOI request 'Triangle Field Hungerford - inclusion in SHLAA'.

Thank you very much for the further information provided. Together with the narrative response it is extremely helpful, but I would be grateful if you could conduct a review of the response, with a view to supplying:

(a) information identified but not provided.

(b) information identified but withheld in reliance on the s43 exemption,

(c) and possibly identifying and supplying further information:

With regard to (a) Colin Broughton's email to David Small of 17th September 2013 refers to a proforma that he has to fill in and pass to Planning Policy. Please could you supply this.

With regard to (b) I have consulted the following ICO guidance regarding S43. If I am interpreting the guidance correctly it says that the exemption only applies if the possibility of prejudice to commercial interests is 'not trivial' and if there is a significant risk of occurrence.

http://ico.org.uk/for_organisations/guid...

"f) What is the likelihood of the prejudice being caused?

Deciding whether or not a particular disclosure would be likely to cause prejudice will often require the exercise of judgement. It will be necessary to judge, in other words, what may be the nature of the harm that would be caused and, also, the likelihood of that harm. While the “prejudice” that may be caused by disclosure may not be substantial, nor should it be completely trivial. As for likelihood, while prejudice need not be certain, there must be a significant risk rather than a remote possibility of prejudice."

You have confirmed that there is a 50 year lease between West Berkshire Council and Hungerford Town Council on the Field, dated 10 September 1992, with an option to renew for a further 50 years at a nominal rent. The documents disclosed also make reference to the sub-lease from Hungerford Town Council to the Rugby Club ( with 15+ years outstanding). Taken together with the following statements extracted from the SHLAA the likelihood of negotiations with commercial developers arising in the foreseeable future, let alone being adversely affected by release of the information identified and withheld must surely be remote?

"Availability: Owner indicates the site will be available in approximately 15 years."

"Overcoming Constraints: A landscape assessment and heritage impact assessment would be required. The long term lease on the site would prevent the site coming forward in this plan period."

(c) With regard to further information, please could you review:

(i) whether there is any internal ( to WBC) correspondence relating to the formal submission of the Field for inclusion in the SHLAA ( eg between members of the Asset Management Committee and Planning)

(ii) whether there is any information held about approaches from any other parties regarding purchase of the Field ( or part thereof) eg from community groups/developers/housing associations.

(iii) the response to part (3) of my request which related to proposals for non-housing development on the Field and to which Ms Broughton has replied "none". I understand that a permitted development permission has been granted for the siting of a container at the entrance to the Field, and that Hungerford Town Council are now seeking to site two further containers there. The following minute refers:

http://www.hungerford.uk.net/councilmain...

13 Theatre Company siting of containers – The containers are currently sited on David Liddiard’s land under a temporary licence which runs out at the end of February. Cllr Crane proposed that HTC support the re-siting of the containers on the Triangle Field subject to lease agreement and permission from WBC, seconded by Cllr Benneyworth, 1 abstention, rest in favour.

Please could you supply the permitted development permission/ correspondence.

Finally, there has been a rumour circulating that there are proposals to build a road over the field to improve access to the Eastern edge of Hungerford and relieve congestion on Priory Avenue/Fairview Road and therefore unlock the development potential of various sites in this area. Does the Council hold any information on this?

I am very conscious that Ms Broughton must already have spent considerable time providing her response, and that identifying, extracting, and publishing further information identified as a result of the clarification provided in this review request might take that time above the time/cost threshold of the FOI Act. If that is likely to be the case I would be grateful for the opportunity to select from a list of documents identified.

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

Many thanks.

Yours faithfully,

J A Giggins

Suzanne Kenchington, West Berkshire Council

FoI/IR/2014/06

 

Dear Mrs Giggins,

 

Request for information: Triangle Field Hungerford - inclusion in SHLAA

 

Thank you for your email received on 10^th March. This has been passed to
David Lowe to progress, a response will be sent by no later than 7^th
April.

Yours sincerely,

 

Suzi Kenchington 

Information Support Officer

Strategic Support,

West Berkshire Council, Council Offices, Market Street, Newbury, RG14 5LD

email:  [1][email address]

' 01635 519860 (external)      '  2860 (internal)      

P Do you really need to print this email?

 

show quoted sections

J A Giggins left an annotation ()

Excerpt from the Hungerford Town Council Recreation & Amenities Committee meeting held on 17th February 2014 ( not published until after approval at the following meeting)

http://www.hungerford.uk.net/councilmain...

"Triangle Field development and drainage – Cllr Small has drafted a Licence for alterations and a Deed of Easement. WBC can turn around the agreement quite quickly. However a more realistic date to start the contract would involve putting back the start-date by 14 days in order to have the legal agreements signed with both WBC and Sovereign. Once a contract is signed HTC will start incurring costs. VAT is a concern and is being considered. Cllrs Crane and Small’s meeting with A Law (WBC) and H Cole resulted in WBC admitting the Triangle Field had been put in the SHLAA by mistake. A Law made clear that WBC would be able to sell it to us on the basis of a ‘Public Open Space in perpetuity’. Cllr Crane has followed this point up in writing. Action: HTC to investigate process. A new valuation would be needed. Action: Find out cost of this."

David Lowe, West Berkshire Council

Dear Mrs Giggins,

 

I have not yet been able to conclude this review, although I would expect
to do so by Friday of this week.

 

Yours sincerely,

David Lowe
Scrutiny and Partnerships Manager
Strategic Support  West Berkshire Council  Market Street  Newbury 
Berkshire  RG14 5LD
01635 519817 | Ext 2817 | [1][email address]

[2]http://www.westberks.gov.uk/

 

show quoted sections

David Lowe, West Berkshire Council

3 Attachments

Dear Mrs Giggins,

 

Please find attached my response to your recent review request and two
further documents mentioned within it.

 

Yours sincerely,

David Lowe
Scrutiny and Partnerships Manager
Strategic Support  West Berkshire Council  Market Street  Newbury 
Berkshire  RG14 5LD
01635 519817 | Ext 2817 | [1][email address]

[2]http://www.westberks.gov.uk/

 

show quoted sections

Dear David Lowe,

Many thanks for your response.

I note that you have mentioned that you have considered the request under the Environmental Information Regulations, but the exemption you have replied is a FOI exemption to which no public interest test has been applied.

Before I consider whether to refer this request to the Information Commissioner, could you please cite the EIR exemptions that you are relying on and conduct a public interest test if required.

Specific information that I still consider outstanding is:

The instruction to Colin Broughton to put the Triangle Field forward for development.

The letter/email/permitted development order from West Berkshire Council to Hungerford Town Council/Councillor telling them that the siting of the container on the Field didn't need planning permission.

Correspondence about a road/access over the Field.

Many thanks.

Yours sincerely,

J A Giggins

Sue Broughton, West Berkshire Council

1 Attachment

Dear Mrs Giggins,

Thank you for your email. Mr Lowe is on leave, but I have phoned him at home and he has agreed that the response to your request for a review may have appeared confusing owing to the mention of the Environmental information Regulations. Mr Lowe considered the application of the Regulations because he wished to establish whether the request had been correctly considered under the Freedom of Information Act 2000, or whether the request should rather have been considered under the Environmental Information Regulations 2004.

The response should have made this clear, and also that in his view the Freedom of Information Act 2000 applied to the request and that the S43(2) exemption under the Freedom of Information Act had been correctly applied, although I note that Mr Lowe's letter to you explicitly states;
"Reliance on the Section 43 exemption. I am satisfied that that the Council has
appropriately applied the exemption in this case."

A public interest test was included when this exemption was applied at the time of the original response and I have attached this again for your information. If the reviewer considers the exemption has been correctly applied there is no requirement to re-cite the exemption.

In respect of these questions:

1.The instruction to Colin Broughton to put the Triangle Field forward for development.
This is the AMG minute already supplied to you, which instructs that the field should be included on the SHLAA.

2.The letter/email/permitted development order from West Berkshire Council to Hungerford Town Council/Councillor telling them that the siting of the container on the Field didn't need planning permission.
If an enquiry from Hungerford Town Council has been made it has been dealt with verbally. The authority often gives verbal advice regarding planning enquiries. Mr Lowe's comments in the review response dealt with your enquiry to the Planning Service regarding whether a breach had occurred, not with correspondence with the Town Council.

3.Correspondence about a road/access over the Field.
This is answered in Mr Lowe's letter which makes a refusal based on S43(3) of the Freedom of Information Act 2000. There is no requirement to cite a public interest test where S43(3) applies, as S43(3) removes the duty at S1(1) of the Act.

Yours sincerely

Sue Broughton
Information Management Officer
Please note that I work part time and messages may not be answered until I am next in the office. 
  Strategic Support West Berkshire Council, Council Offices, Market Street, Newbury RG14 5LD
Email:  [email address]
 01635 519747 (external)         2747 (internal)      
You should be aware that all emails received and sent by this Council are subject to the Freedom of Information Act 2000 and therefore may be disclosed to a third party.
Please consider the environment before printing this e-mail

show quoted sections

Dear Sue Broughton,

Many thanks for this clarification. However since the information requested is mostly planning/development based I think there is a definite argument that the request should have been considered under the EIR's which as you know have a stronger presumption in favour of disclosure.It would be helpful if you could expand on why you don't consider they apply on this occasion.

Otherwise It seems I will have to refer the matter to the Information Commissioner to decide, drawing attention to a couple of my other requests that were planning related where the decision notices clearly stated that the requests should have been dealt with under the EIR's.

Thanks also for the responses to the 3 clarified points. I appreciate that under the FOI information need only be supplied if it is 'recorded'. I am uncertain whether this also applies to the EIR's, so will further clarify that the information I would like is:

1 The name(s) of the Councillor's who drove the decision to put the Triangle Field in the SHLAA and the reasoning for doing so. Unfortunately the minutes of the asset management group meeting supplied do not provide this information.The decision has already been described as a 'mistake' by Cllrs Law & Cole in the Hungerford Town Council meeting minutes of 3rd March 2014 ( published April 2014) - see below for extract - but unfortunately there is again no detail as to who made the mistake or why nobody pointed this out at the time.

http://www.hungerford.uk.net/councilmain...

"7. Committee reports (no more than 3 minutes per report)
R&A – Cllr Benneyworth – A meeting will take place tomorrow at 10.30am to mark the boundary at the Recreation Ground for the purpose of the lease. Cllrs Crane and Small met with Alan Law and Hilary Cole. At this meeting WBC admitted they had made an error and the Triangle Field will be withdrawn from the SHLAA. Hilary Cole suggested that the Triangle Field should be re-designated as an Open Space in Perpetuity. HTC should obtain a new valuation on this basis. The future of the Croft Field has yet to be determined. The negotiations between T&M and WBC have stalled. Cllr Crane proposed he continues negotiations on HTC’s behalf to save the Croft Field from the developers, seconded by Cllr Small, all in favour. The Community of Hungerford Theatre Company (CHTC) has applied to WBC to store containers at the Triangle Field. This has been rejected. CHTC are considering the Croft Field and other locations. There are 4 containers and £20k of assets."

2 Likewise it would be helpful if you could tell me who told HTC that the container on the field doesn't require planning permission. I am surprised that HTC didn't request this in writing as I seem to remember that they were advised by the consultant employed on the Triangle Field project that it would require permission given that the Field (and indeed Hungerford itself) is in an AONB. It would be helpful therefore to know who gave the advice and whether it was given in an official capacity.

3 My comments re the EIR apply equally to this part of the request, and so I do not believe that Mr Lowe has applied a valid exemption. Given the nature of the response and a walk across the Western boundary of Hungerford Common I can see how the rumour has originated, and there must surely be a strong public interest argument for disclosing the information.

In light of the above is there any further information that you can supply?

Yours sincerely,

J A Giggins

Sue Broughton, West Berkshire Council

 I am out of the office this afternoon (Monday 14th April). Suzanne
Kenchington [email address] can forward queries to the
appropriate officer. Requests for information should be sent to
[West Berkshire Council request email] and complaints to [email address]

show quoted sections

Sue Broughton, West Berkshire Council

Dear Mrs Giggins,

Thank you for your email. As the information which I refused under S43 is the valuation for the field I cannot see that this is environmental in nature. Valuations are unrelated to planning. The remaining information originally requested has been supplied.

Mr Lowe is currently on leave so I cannot comment on his use of S43(3) regarding any plans for a road or access across the field provided in his review response. Unfortunately I was on sick leave when the review took place. You are welcome to take this matter to the Information Commissioner if you wish.

1 The name(s) of the Councillors who drove the decision to put the Triangle Field in the SHLAA and the reasoning for doing so.
The site was put forward by Councillor Alan Law. The recorded information held in the minutes has already been supplied. No other recorded information on the reasoning exists.

2 Likewise it would be helpful if you could tell me who told HTC that the container on the field doesn't require planning permission.

My understanding of Mr Lowe's response was that this dealt with your enquiry to the Council about containers on the field, and it was confirmed to you that no action would be taken for a breach. Again I will have to await Mr Lowe's return from leave to query this. I have however confirmed that there have been no applications to site containers on the field in the last three months (ie January to March 2014) as I understood from the Town Council minute you supplied that this was a recent matter. Perhaps you can confirm if you are asking about an application or enquiry by CHT which took place in 2013 or 2012. As I explained in my previous email, if an enquiry from Hungerford Town Council has been made in the last three months, it has been dealt with verbally, as there is no record of this.

3 My comments re the EIR apply equally to this part of the request, and so I do not believe that Mr Lowe has applied a valid exemption. Given the nature of the response and a walk across the Western boundary of Hungerford Common I can see how the rumour has originated, and there must surely be a strong public interest argument for disclosing the information.

Please see my point about the use of S43(3) above.

Yours sincerely

Sue Broughton
Information Management Officer
Please note that I work part time and messages may not be answered until I am next in the office. 
  Strategic Support West Berkshire Council, Council Offices, Market Street, Newbury RG14 5LD
Email:  [email address]
 01635 519747 (external)         2747 (internal)      
You should be aware that all emails received and sent by this Council are subject to the Freedom of Information Act 2000 and therefore may be disclosed to a third party.
Please consider the environment before printing this e-mail

show quoted sections

Dear Sue Broughton,

Many thanks for this response. The full history of my request is on whatdotheyknow.com and you will see that the items I specifically asked Mr Lowe to consider in his internal review were items that i felt were covered by my original request. It may be that the FOI applies to some items and the EIRs to others. In any case, whether or not s43 of the FOI Act applies to the valuation itself ( and i have put forward a justification as to why i don't think it applies), i can't see that it applies to the documents in their entirety. At this stage i would be happy with further redacted documents - it is the wording of the instruction itself I am particularly interested in.

Thank you for supplying the name of the Councillor who suggested that the Field be developed (Alan Law).

My enquiry about the siting of a container on the field relates to a container that is in situ on the field and has been there for some time. I am not sure what it's intended end use is or whether it is a temporary or permanent structure, although I know that HTC are intending to convert the existing storage within the RugbyClub/Sports Pavillion on the field into changing facilities/showers leaving them short on storage for sports equipment etc.

I believe the enquiry regarding situating the container on the Field was made around April 2013 after the HTC Triangle Field project consultant indicated that it would need planning permission. E3 and E4 in thie DCLG technical guidance (link below) would seem to endorse this view as the container sits at the entrance to the Field in front of the building which is outside the settlement boundary and in an AONB. I appreciate that the guidance is for residential development but I would have thought that the same principles would apply in this case. I will take a photo and send it to you.

I was told by Mr Beech of your planning department that West Berkshire Council had determined that the container was permitted development, but he did not say who had made the determination or what the reasoning was. Mr Lowe has expanded on this point in his internal review, but the information I am seeking is the enquiry ( from Hungerford Town Council and/or agent/representative) and the response/determination from West Berkshire Council. All the guidance I can find on permitted development rights advises parties to contact their LPA and to obtain decisions in writing presumably to protect against any future dispute. On this occasion it is the siting of the container that is particularly unfortunate and I would like to know if any restrictions were placed on its position in the permitted development 'determination'. If documents exist I would appreciate sight of them.

For further clarification I believe these would fall under the 'non residential' development part of my original request. The siting of the containers belonging to Hungerford Theatre company on the Field is I believe a separate issue but if any correspondence on this is held then I would appreciate sight of it as I understand on this occasion the LPA decided that this was not permitted development.

Many thanks for your help.

Yours sincerely,

J A Giggins

http://www.permitteddevelopment.org/pdf-...

Sue Broughton, West Berkshire Council

Dear Mrs Giggins,

Thank you for your email. I will discuss this with Mr Lowe once he returns from leave (22nd April). This does not affect your right to refer a complaint to the ICO should you wish to do so.

Yours sincerely

Sue Broughton
Information Management Officer
Please note that I work part time and messages may not be answered until I am next in the office. 
  Strategic Support West Berkshire Council, Council Offices, Market Street, Newbury RG14 5LD
Email:  [email address]
 01635 519747 (external)         2747 (internal)      
You should be aware that all emails received and sent by this Council are subject to the Freedom of Information Act 2000 and therefore may be disclosed to a third party.
Please consider the environment before printing this e-mail

show quoted sections

Sue Broughton, West Berkshire Council

1 Attachment

Dear Mrs Giggins

Re: FoI Review

Please find attached the exchange of information regarding the siting of the container, as requested.

I have discussed the remainder of your email with Mr Lowe, his view is that his Review response is complete and that you may now go to the Information Commissioner if you should wish to do so.

Yours sincerely

Sue Broughton
Information Management Officer
Please note that I work part time and messages may not be answered until I am next in the office. 
  Strategic Support West Berkshire Council, Council Offices, Market Street, Newbury RG14 5LD
Email:  [email address]
 01635 519747 (external)         2747 (internal)      
You should be aware that all emails received and sent by this Council are subject to the Freedom of Information Act 2000 and therefore may be disclosed to a third party.
Please consider the environment before printing this e-mail

show quoted sections

Dear Sue Broughton,

Many thanks for this further information which if I have interpreted it correctly means that the restrictions imposed on permitted householder development in the AONB do not apply to LA or Town Council development. This ( to me) would seem to be a loophole in the GPDO which could have much wider implications and I trust you will not consider it "vexatious" if I pursue the issue further using this particular instance as an example.

Yours sincerely,

J A Giggins

J A Giggins left an annotation ()

There is some dispute here as to whether the Environmental Information Regulations or the FOI Act should have been used to determine this request. This makes a difference because the EIR's carry a greater presumption of disclosure and are subject to a public interest test.

The advice below was supplied by the Homes & Community Agency some time ago when refusing a non related request.

"Environmental Information Regulations

The EIR give rights of public access to information held by public authorities. An overview of the main provisions of the EIR can be found in The Guide to the Environmental Information Regulations: http://www.ico.gov.uk/for_organisations/....

............................

Regulation 12(5)(e) - Confidentiality of Commercial or Industrial Information

Regulation 12(5)(e) states:
12.—(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect—
(e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest.

To refuse environmental information under the exception in regulation 12(5)(e), public authorities need to establish that:
• the information does not relate to emissions;
• the information is commercial or industrial in nature;
• it is confidential under either the common law of confidence, contract, or a statutory bar;
• the confidentiality is protecting a legitimate economic interest;
• the confidentiality will be adversely affected by disclosure; and
• the public interest in maintaining the exception outweighs the public interest in disclosing the information.

The exception has no direct equivalent in the FOIA but it incorporates elements of both section 41 (information provided in confidence) and section 43 (commercial interests)................... However it is worth highlighting that one key difference is that EIR Regulation 12(2) specifically states that a public authority shall apply a presumption in favour of disclosure. This is different to section 41 where, as I have explained above the presumption would be non-disclosure."

Looking for an EU Authority?

You can request documents directly from EU Institutions at our sister site AskTheEU.org . Find out more .

AskTheEU.org