Use of Empty Rates Relief for Commercial and Industrial Properties

Waiting for an internal review by London Borough of Barking and Dagenham Council of their handling of this request.

Dear Barking and Dagenham Borough Council,

I would like to request responses to the following questions:

1) For how many commercial properties within the London Borough of Barking and Dagenham have there been multiple applications for empty rates relief in the past three years with a time lapse of no less than approximately four and a half months between applications?

2) For how many industrial properties within the London Borough of Barking and Dagenham have there been multiple applications for empty rates relief in the past three years with a time lapse of no less than approximately seven and a half months between applications?

3) What are the addresses of the properties covered by your answers to questions (1) and (2) above?

4) Who are the proprietors of the properties covered by your answers to questions (1) and (2) above?

5) For each proprietor covered by your response to question (4), what is their interest in the property (for example, freehold or leasehold)?

6) For each proprietor covered by your response to question (4), are they a Real Estate Investment Trust (REIT)?

7) If the applicants for empty rates relief for the properties covered by your answers to questions (1) and (2) above are not the proprietors of those properties, who are the applicants?

8) For each of the properties mentioned in your answers to the questions above, on what date did the London Borough of Barking and Dagenham receive the most recent application for empty rates relief, and was such relief granted?

Alternatively, if you already operate a publication scheme for any of the information requested above, please can you let me know where and how I can access this scheme in order to obtain that information? Of course, for any information requested above that is not part of a publication scheme, I would still like to receive that information from you by way of this Freedom of Information request.

We understand that certain landowners are exploiting a loophole in the Non-Domestic Rating (Unoccupied Property) (England) Regulations 2008 to avoid paying business rates for long periods of time while keeping their properties empty.

An empty commercial or industrial property will be exempt from paying business rates for a certain period of time. After three months (for a commercial property) or six months (for an industrial property) of being empty, the landowner must start paying business rates again.

We are aware that certain landowners will enter into a lease of at least six weeks at the end of this three or six month period with the sole intention of using this lease to avoid paying business rates for a further three or six months once the lease expires.

This is done to get around regulation 5 of the Non-Domestic Rating (Unoccupied Property) (England) Regulations 2008, according to which a lease of less than six weeks would not achieve this goal.

It is worth noting that, despite the six week lease, the property is likely to remain continuously empty by any reasonable definition of the word, as High Court case-law has found that simply installing Bluetooth apparatus into a premises is enough for that property to be “occupied”.

I trust there will be no issues regarding the ‘personal data’ exemption to disclosing information. I understand that ‘personal data’ is limited to data about identifiable living individuals and does not extend to information about companies or organisations. To the extent that the vast majority of answers you can provide to my questions above will relate to companies and organisations, I expect you will be able to disclose those answers without breaching your obligations under the Data Protection Act.

However, if you take the view that some of the requested information does constitute ‘personal data’, I trust you will be able to find a way of processing it fairly and lawfully such that you are able to fulfil your duties under the Data Protection Principles. I implore you to find a way of doing so, especially given the public interest in disclosing this information, given its importance to the public discussion on issues such as tax avoidance, homelessness and property speculation. Such importance was recently recognised by Judge Fiona Henderson, who noted in the context of a freedom of information case brought against Camden London Borough Council that “the public interest lies in putting empty properties back into use” and who thereby ordered the disclosure of certain information that would facilitate this. It is suggested that the information requested herein would also facilitate this, by contributing to the public discussion on properties that remain empty and hopefully driving forward public policy proposals that would bring such properties back into use.

We look forward to hearing from you on or before 28 February 2018 (this date being the end of the 20 working day period within which you will have to reply). Please ensure your responses are sent by post to Lesley Jones, care of Freedom Press, 84b Whitechapel High Street, London, E1 7QX.

Yours faithfully,

Lesley Jones

London Borough of Barking and Dagenham,

Information request
Our reference: 5632033

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Dear Sir/Madam
 
Freedom of Information Act 2000
 
Thank you for your request for information that was received on 1 February
2018 concerning business rate relief.
 
We are dealing with your request under the Freedom of Information Act
2000 and we aim to send a response by 1 March 2018.
  
The Freedom of Information Act 2000 may restrict the release of some or
all of the information you have requested. We will carry out an assessment
and if any exemptions 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 faithfully
 
 
The FOI Team
[Barking and Dagenham Borough Council request email]
 
NOTE: Please do not edit the subject line when replying to this email.

London Borough of Barking and Dagenham,

1 Attachment

Information request
Our reference: 5632033

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Dear Sir/Madam
 
Thank you for your request for information received on 1 February 2018.
 
Please find attached our response to your request.
 
Yours faithfully
 
 
The FOI Team
[Barking and Dagenham Borough Council request email]
 
NOTE: Please do not edit the subject line when replying to this email.

Dear Barking and Dagenham Borough Council,

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

Thank you for your letter dated 27 February 2018 (Your Response), in which you responded to my correspondence dated 31 January 2018 and entitled "Use of Empty Rates Relief for Commercial and Industrial Properties" (My Correspondence).

Your Response

I understand that you are refusing to answer the Freedom of Information (FOI) requests within My Correspondence on the grounds that the cost for doing so would exceed the appropriate limit of £450.

In reaching this conclusion, you estimate that it would take more than 3.5 days to determine if the London Borough of Barking and Dagenham holds the relevant information and to locate, retrieve and extract that information.

You make this estimate based on the assertion that you would have to check 4,500 accounts and that it would take 20 minutes to check each one in detail.

In asserting all this, you rely on section 12 of the Freedom of Information Act 2000 (FOIA) and the ‘appropriate limit’ set out in the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004.

Internal Review

Please may I request an internal review of this decision?

I believe the decision contained within Your Response is incorrect, and I will outline my reasons for believing this below.

(1) Your Failure to Offer Advice and Assistance

I understand that, where a public authority invokes section 12 FOIA in its refusal to disclose answers to an FOI request, that public authority is under a duty to provide advice and assistance to help the requestor refine their request so that it can be dealt with under the appropriate limit.

I further understand that, even where a public authority does not invoke section 12, it remains under a general duty to provide advice and assistance pursuant to section 16 FOIA.

Such advice and assistance may include advice as to what proportion of the requested information could fall within the appropriate limit, and advice as to how an FOI request might be re-formulated so as not to exceed the appropriate limit.

Your Response fails to offer any such advice and assistance.

(2) Your Reliance on General Assumptions in Calculating an Estimate

I understand that your estimate of the time it will take to comply with an FOI request must be “reasonable”.

I refer you to the case of Randall v Information Commissioner and Medicines and Healthcare Products Regulatory Agency (EA/2006/0004, 30 October 2007), which defined “reasonable” as meaning that the estimate should be “sensible, realistic and supported by cogent evidence”.

I also refer you to the relevant guidance from the Information Commissioner’s Office, available at https://ico.org.uk/media/for-organisatio... (The Guidance).

Paragraph 23 of The Guidance states that, in assessing whether a costs estimate is “sensible and realistic”, it is relevant to note that such estimate “should not be based on general assumptions, for example, that all records would need to be searched in order to obtain the requested information”.

It would seem that Your Response makes just such a general assumption, and is thereby neither sensible nor realistic, and therefore not reasonable.

(3) Your Failure to Provide Cogent Evidence

I point you to paragraph 37 of The Guidance, which highlights the following information you might have provided as ‘cogent evidence’:

- whether you have carried out any preliminary searches for the requested information;

- whether you have based your estimate on a random representative sampling exercise;

- which departments or members of staff have been contacted;

- the search terms used when querying electronic records;

- why you need to search the accounts to which you refer; and:

- how the information is stored, whether in paper or electronic files.

None of this information was provided in Your Response. Because Your Response fails to provide such ‘cogent evidence’, it is not reasonable.

(4) Your Failure to Act Reasonably in light of Other Authorities' Response to Identical Requests

I refer once more to your duty to be “reasonable” when responding to FOI requests, and in particular to be “sensible and realistic”.

The FOI requests I sent to you have also been sent to other local authorities.

The London Boroughs of Bexley, Kingston-upon-Thames, and Lambeth have each responded to my FOI requests with correspondence and excel spreadsheets providing answers to the eight questions I also asked of you.

If the London Boroughs of Bexley, Kingston-upon-Thames and Lambeth are able to provide such responses, it is not reasonable, sensible or realistic to suggest that the London Borough of Barking and Dagenham cannot do the same.

(5) Treatment of My Correspondence as One FOI Request

I refer you to the case of Ian Fitzsimmons v ICO & Department for Culture, Media and Sport (EA/2007/0124. 17 June 2008), which established that multiple requests within a single item of correspondence should be treated as separate requests for the purpose of section 12.

Because My Correspondence contained eight separate questions, it should not be treated as one FOI request, but rather as multiple separate FOI requests within one document.

A separate costs estimate should therefore be made for each separate FOI request, rather than one aggregate estimate for the cost of responding to them all.

This could be achieved by calculating an aggregate costs estimate for responding to all eight FOI requests within My Correspondence, and dividing that overall figure by eight.

When costs are calculated in this manner, the cost of responding to each FOI request separately should fall comfortably below the appropriate limit.

Concluding Remarks

On the basis of the above, I re-iterate my request for an internal review.

I believe the result of this internal review should be that you decide to provide answers to the FOI requests within My Correspondence, on the grounds that your initial refusal to do so was not reasonable (lacking cogent evidence and being neither sensible nor realistic), and that when costs estimates are re-assessed for each individual FOI request within My Correspondence, they fall comfortably within the appropriate limit.

Failing that, I look forward to receiving your advice and assistance regarding what proportion of the FOI requests within My Correspondence you will be able to answer within the appropriate limit, and/or regarding how I might re-formulate my FOI requests so as to stay within the appropriate limit.

Yours sincerely

L Jones