FI16235
Request
- How many breaches of planning conditions have there been in the last seven years on major new housing and other developments by persimmon homes in Deal district and where.
- How many gave there been during the same period in Deal for Quinn estates?
- How are these planning enforcement breach checks carried out on major new developments and by whom?
- How many of these breeches are still open enforcement investigations?
Response
- Where formal action is taken for breach of planning legislation, this is available on the Planning Enforcement Register which is available online at https://www.dover.gov.uk/Planning/Planning-Applications/Enforcement/Planning-Enforcement-Register/Planning-Enforcement-Register.pdf.
- Where formal action is taken for breach of planning legislation, this is available on the Planning Enforcement Register which is available online at https://www.dover.gov.uk/Planning/Planning-Applications/Enforcement/Planning-Enforcement-Register/Planning-Enforcement-Register.pdf.
- This information can be found in the Planning Enforcement Plan which is available online at https://www.dover.gov.uk/Planning/Planning-Applications/PDF/PEP-Oct-31-2018-DC-LJ-1.pdf
- This will be shown on the Planning Enforcement Register.
Internal Review Documents
Internal Review Request:
I am in possession of numerous panning enforcement cases raised by myself over the last few years for both Persimmon Homes and Quinn Estates which do not appear on your register which is why I applied for the FOI Request in the first place as this was of grave concern to me in the absence of any feedback from the planning enforcement team.
I would therefore like to request an internal review to ascertain what is happening to the cases raised by members of the public.
The cases that concern me most regarding Persimmon Homes and Quinn Estates are failure to plant trees that surviveAND Removal of an unauthorised business unit from Betteshanger Country Park.
ENF/24/00156- dead trees have not been replaced
ENF/24/00163- Dead trees have not been replaced.
ENF/23/00403- Datum Groundworks offices still not removed from Betteshanger Country Park
Internal Review Response:
Firstly, I must consider if your request for information has been dealt with under the correct legislation, that is the FOIA or the EIR, and if the information is environmental. Regulation 2(1) of the EIR defines environmental information as being information on:
- the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;
- factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);
- 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 (a) … as well as measures or activities designed to protect those elements;
- reports on the implementation of environmental legislation;
- cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and
- the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c);
As the information you are seeking relates to planning, this is a ‘measure’ that affects the land and, enforcement of planning regulations, I believe would fall within the description of environmental information under the EIR and therefore considering your request for disclosure under the EIR rather than FOIA is the correct route to take.
The Environmental Information Regulations 2004 (EIR) are similar to the Freedom of Information Act (FOIA) and provide access to information held by the local Authority, subject to any exemptions/exceptions that may apply. Unlike the FOIA, which covers the majority of information, EIR is limited specifically to information regarding the environment. The EIR give people a right of access to information about the activities of public authorities that relate to or affect the environment.
Enforcement Documents
In response to your request, you were provided with a link to the publication on the Council’s website of formal planning enforcement cases where action has been taken. The information that is not published and that you seek has been gathered and is being held as part of planning enforcement and is retained for any potential investigations they may conduct in to whether a breach had occurred which the Council have a duty to conduct under section 171A of the Town and Country Planning Act 1990. This would fall under the definition of ‘an inquiry of a criminal or disciplinary nature’ and as such is covered within Regulation 12(5)(b) of the EIR which states that a local authority may refuse to disclose information to the extent that its disclosure would adversely affect ‘the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature’.
Regulation 12(5)(b) – The course of justice
Planning enforcement investigations relate to compliance with planning and the ability of a local planning authority to determine whether a breach has occurred and, if so, to determine whether remedial action is necessary. The information is being held for any potential future investigations. The exception at regulation 12(5)(b) is broad and encompasses any adverse effect on the course of justice. Planning enforcement is a legal matter, and the applicant has a legitimate expectation that the information would not be shared into the public domain where no action has been taken.
Disclosure of information relating to such inquiries would adversely affect the course of justice and any potential enforcement action for future cases, through impacting public confidence in such inquiries being undertaken both appropriately and with due regard to the rights and expectations of all parties involved. In view of this I consider it would be more probable than not that disclosure, into the public domain, of the requested information, would adversely affect the course of justice and therefore the exception provided under regulation 12(5)(b) is engaged and I conclude applies to the information you are seeking.
Public interest test
In applying the above exception, however, consideration needs to be given to the public interest, balancing the public interest arguments for disclosing the information against those for upholding the exemption. In the interests of accountability and transparency there is obviously a presumption towards disclosure which in turn can help to increase public understanding of the decisions taken by the public authority, however there is also public interest in ensuring that the local authority decisions are subject to an appropriate level of openness. Where allegations of a breach are received, the local planning authority has a duty to investigate those concerns and , where appropriate, instruct remedial steps. In deciding whether enforcement action is necessary the authority needs to engage with those concerned and this is usually more productive if it is kept confidential. Disclosure would hinder the Council’s ability to carry out its legal obligations and undertake further inquiries effectively, compromising the fair treatment expected by all parties involved and the effective conduct of future investigations. There is a strong public interest in ensuring investigations are conducted in such a manner as to ensure fairness, and that neither the position of the council, or the party which may be under investigation, is prejudiced. As planning enforcement is a legal matter the relevant parties would have the expectation that information would not be shared within the public domain and not every planning breach requires the Council to take remedial action. In addition, it is important to distinguish between information that is in the public interest and what is of interest to the public. There would be an increased public interest if a breach had been found, and this information would be published as part of the Planning Enforcement Register. Where there is no formal action taken and the information is being held should action be required in the future, the public interest argument in favour of the disclosure is reduced. I believe this information would be more a matter of interest to the public than of public interest.