Gasworks development – FOI FIASCO

Gasworks development – FOI FIASCO

We have previously drawn our readers’ attention to the failure of the Council to provide information that we requested under the Freedom of Information procedure set out in the Freedom of Information Act.

Ten months after our initial FOI request we have got precisely nowhere.

To refresh your memories, here is the history:

On February 8th this year we asked to see copies of all correspondence on planning matters between the Berkeley/St William Group and the Council in relation to the Gasworks site after January 2019 up to the date of our FOI request on Feb 8th 2021.

The reason for this is because we suspected that the Council and the Berkeley/St William Group (in relation to the proposed Gasworks site development), had made an attempt to unlawfully change the approved 2016 City Plan in order to extend the Marina Tall Buildings zone from the marina up on to the cliff top above to include the Gasworks site within that tall buildings area. See the plan below. It was proposed to do this by introducing the extension of the Tall Buildings area via the Urban Design Framework SPG (Supplementary Planning Guidance), the draft of which was introduced in October 2020.

You can read about it here: https://www.brighton-society.org.uk/has-the-council-surreptitiously-and-deliberately-ditched-planning-policy-to-bolster-developer-interests/

Extract from the Draft UDF SPD showing the Marina Tall Buildings area extended on to the Gasworks site

We subsequently asked the Council Legal Advisor whether an SPG (Supplementary Planning guidance) could over-ride the Approved 2016 City Plan.

Her response was “no it can’t.” She went on to say that the proposed Tall Buildings extension on to the Gasworks site would be withdrawn from the draft Urban Design Framework. And to be fair it has been.

But an unlawful provision should never have been introduced in the first place. The aim of our FOI request is to find out how that happened.

Was the proposal to include the Gasworks site within the Marina Tall Buildings area introduced as part of the Urban Design Framework SPG discussed between the Council and the Berkeley/St William Group?

Was it realised by both parties that this would be unlawful? And if not, why not?

Was that failure wilful or just incompetent?

Where all this leaves the Berkeley Group is not clear, and probably won’t be until we see the planning application which is expected soon. Will it include tall buildings as the first two consultation proposals did?

Or will it blithely proceed on the assumption that because the council had previously expressed its agreement to tall buildings on the Gasworks site, that provided sufficient assurance that a planning application for tall buildings would be approved?

That is why we lodged an FOI request with the Council.

Here is the text of our request:

We request to see copies of all correspondence on planning matters between the Berkeley/St William Group and the Council after January 2019 up to the date of the FOI request on Feb 8th.

On 8 March – a month after making the request – we received an email from the Council saying it was unable to respond until 6 April.

A month after that we received another email saying it would be 30 April.

Another month later an email informed us it would now be 30 June.

So we lodged a complaint wth the ICO (Information Commissioner’s Office).

On 7 May the ICO wrote to the Council instructing it to respond to our request within 10 working days – ie by 21 May. But we heard nothing from the Council.

On 25 May we wrote to the Council requesting a response by 2 June otherwise we would have no option but to lodge a second complaint with the ICO. Again we received no response.

So on 4 June we complained to the Information Commissioner for a second time.

On 9 June the ICO issued a Decision Notice to the City Council instructing the Council to provide the information we requested within 35 calendar days. If it failed to do so, it confirmed that the ICO will consider referring the case to the Commissioner’s enforcement solicitors.

The 35 days expired on July 15th.

On July 16 at 5.15pm we received a reply from the Council rejecting our request on the grounds it would exceed the Council’s cost limit for FOI requests, though we did establish that there are 862 emails on file.

At no time prior to that did the Council give us the slightest indication that a cost limit could apply.  Nor did we receive the slightest indication about the number of correspondence items there were. And of course there was no way of knowing.

It took over 23 weeks to get absolutely nowhere.

Following the advice of the Information Commissioner we then asked for an Internal Review.

That set out a Summary of our concerns:

  1. Brighton & Hove City Council’s failure to provide the information we requested after 23 weeks of trying.
  2. The unhelpful, not to say obstructive tactics of three times deferring the date by which we were led to expect a response from firstly March 8, then to 6 April, then to 30 April, then to 30 June.
  3. The failure to respond to our request within the 10 day timeframe set out in the ICO’s letter to the Council dated 7 May.
  4. The failure to respond to our reminder dated 25 May about the ICO’s letter and deadline.
  5. The failure to respond to our request within the 35 day period following the ICO’s Decision Notice dated 9 June. A response was only received at 17.15 on Friday July 16 – the day after the 35 day deadline expired.
  6. The totally unhelpful attitude to indicating what timescale might best relate to the information we have requested in the suggestion that we narrow the timescale applicable to our request. How can we know, without access to the information, what are the relevant or most appropriate timescales?
  7. All these failures aggregated together indicate a deliberate attempt to withhold information which should be open to scrutiny in the public domain, and are intentionally obstructive to the principle of Freedom of Information.

Next step

We then discussed with our fifteen Gasworks Coalition community groups what we might do to resolve the problem. We decided to split up the the 862 items into twelve separate FOI requests, each dealing with a two month period of the 24 months of our original request, and each one sent by separate member of the Gasworks Coalition. They were sent within a day or two of each other between 18 – 21 July.

But that didn’t work either.

On 16 August the Council rejected all our FOI requests. The reason given was that if the Council considers that two or more requests by different persons appear to the Council to be acting in concert or pursuance of a campaign, then the costs of complying with those requests will be aggregated.  So back to square one.  Too costly again. And it was now 27 weeks after lodging our original request. And still we’d got nowhere.
 
So we discussed another solution.  That was to reduce the original 24 month period.  So we asked to see a vastly reduced number of correspondence items within a much more restricted time frame – just 300 items of correspondence between Berkeley/St William and the Council in the period immediately prior to May 31 2020 – which was the period just before the Berkeley Group introduced its first high rise proposals, and maybe also when the draft UDF to allow tall buildings on the Gasworks site was being formulated. But of course we were flying in the dark.
 
We lodged that FOI request on 20 August.
 
On 13 September the Council rejected our request for a third time.  The reason this time?  Well, we had submitted our request within 60 days of our previous request.  That isn’t allowed and so yet again it had been aggregated with our previous requests and so was yet again – too costly!
 
We thought long and hard and had further discussions with the other Gasworks Coalition members and decided to write to the ICO again.
 
One of our Gasworks Coalition members commented,
I think what you suggest doing is really the only way to progress, as this has now become preposterous.  As a local community deeply and legitimately concerned about the democratic aspects of the planning procedure which will affect all our lives, why shouldn’t we act together to try and get the answers we so earnestly require to protect ourselves against any planning proposals that are not in our interests as local people?”
 
Another member drew attention to the wording in the Freedom of Information Act,
“The main principle behind freedom of information legislation is that people have a right to know about the activities of public authorities, unless there is a good reason for them not to. This is sometimes described as a presumption or assumption in favour of disclosure. The Act is also sometimes described as purpose and applicant blind.
This means that:
  • everybody has a right to access official information. Disclosure of information should be the default – in other words, information should be kept private only when there is a good reason and it is permitted by the Act;
  • an applicant (requester) does not need to give you a reason for wanting the information. On the contrary, you must justify refusing them information;
  • you [ie, the Council] must treat all requests for information equally, except under some circumstances relating to vexatious requests and personal data (see When can we refuse a request? for details on these). The information someone can get under the Act should not be affected by who they are. You should treat all requesters equally, whether they are journalists, local residents, public authority employees, or foreign researchers; and
  • because you should treat all requesters equally, you should only disclose information under the Act if you would disclose it to anyone else who asked. In other words, you should consider any information you release under the Act as if it were being released to the world at large.”

So on September 27 we wrote to the ICO including the following documents:

  • A full history of all our FOI requests including dates and content of all correspondence with the Council;
  • A letter arguing that the Council was wrong in refusing a request from the same requester just because it is for information on a related topic.  The FOI Act says that it can only do that where there is a complete or substantial overlap between the two sets of information.  In our case it was substantially different because it related to a completely different and substantially reduced timescale.
  • The refusal decisions received from the Council.

On 13 October we received an email from the ICO confirming that our complaint has been accepted as eligible for further consideration”.

Having heard nothing for a few weeks we wrote on November 22 asking for an update on progress.  We have received a reply apologising for the delay in responding, citing “the ongoing burden of the polemic is causing delays….

And although we have twice requested Internal reviews from the Council we have had no response whatsoever.  And on August 18 we lodged a formal complaint to the Council detailing its failures in  providing us with the information we requested.  We received an acknowledgement promising a response within two days.  Predictably there has been nothing since.

The 60 working days referred to above expired in mid-November.  So we have lodged yet another FOI request. Apart from an auto-acknowledgement we have heard nothing further.

We have also written to the ICO asking them to expedite their investigation. As far as we are concerned we asked them to review our FOI request in early April.  We are still waiting.

 So that’s where we stand at the moment.  

It’s ten months now since we lodged our FOI request. That’s unacceptable.  The FOI procedure is not fit for purpose.

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