FI16605

Request

  1. The number and nature of planning or other complaints or representations relating to its use made in respect of Church House, Northbourne Road, Great Mongeham, Deal CT14 0HD including its garden and any adjoining land ("the Complaints"). 
  1. The number of the Complaints made anonymously. 
  1. The number of the Complaints made by a specific individual or individuals. You do not need to identify each individual where they have claimed anonymity, but if he or she has for example complained 5 times, please state the number applicable to each such complainant. Your reply should be along the following lines: Person A has complained 5 times, person B has complained 3 times, etc. 
  1. A breakdown of actions including investigation, visits and enforcement taken by the Council in response to the Complaints. 
  1. The information communicated to the complainants, whether anonymous or otherwise, in response to 4. 
  1. The procedures and safeguards adopted by the council to ensure a Complaint is genuine and not, for example, the furtherance of a campaign of harassment, intimidation or vilification by a neighbour.

Response

  1. Community Safety have one report of unwanted behaviour. Planning Enforcement have received four complaints about possible breach of planning control.
  2. None of the complaints were made anonymously.
  3. Community Safety: Person – 1 and Planning Enforcement: Person A – 3, Person B – 1, Person C – 1, Person D – 1
  4. In respect of the complaint made to Community Safety a telephone conversation was held with the person making the complaint. Verbal and written advice was given.  Information held in respect of complaints made to Planning Enforcement are exempt from disclosure under Regulation 12(5)(b) of the Environmental Information Regulations for the reasons set out below.
  5. Community Safety signposted the complainant to the Information Commissioners Office and to the Council's website regarding high hedges. In addition, the complainant was advised that they could contact Kent Police if it was considered that harassment was a factor of their complaint.  Information held in respect of complaints made to Planning Enforcement are exempt from disclosure under Regulation 12(5)(b) of the Environmental Information Regulations for the reasons set out below.
  6. For Community Safety, this is set out on the Council's website at https://www.dover.gov.uk/Community/Community-Safety/Anti-Social-Behaviour/Home.aspx.  For Planning Enforcement this is set out on the Council's Planning Enforcement Plan which is available online at https://www.dover.gov.uk/Planning/Planning-Applications/PDF/Planning-Enforcement-Plan.pdf.

Your request for information held by the Council in respect of the Planning Enforcement file has been dealt with under the Environment Information Regulations 2004 (EIR). 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 you are seeking information relating to enforcement of planning regulations, the Council believes that the requested information is likely to be information about a "measure" affecting the elements of the environment. It is for this reason that your request has been considered under the EIR legislation. The Council considers that information held on the planning enforcement file in respect of questions 4 and 5 is exempt from disclosure under Regulation 12(5)(b) of the Environmental Information Regulations.  Regulation 12(5)(b) states that: 

"For the purposes of paragraph 1(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect – 

(b) 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 ..." 

In applying this exception, the Council must consider the public interest in disclosure or against that, withholding the information.  There is a general recognition that it is in the public interest to safeguard the investigatory processes, and the rights of access should not undermine the investigation and the prosecution of criminal matters.  

This exception is subject to the public interest test under Regulation 12(1)(b) of the EIR, and this is set out below: 

The public interest in the disclosure of the information 

  • The Council accepts that there is a general public interest in creating greater transparency surrounding its investigatory processes, and in greater accountability of its decision-making.
  • Disclosure of the requested information would provide evidence of its working practices to the public and raise public confidence that its investigations are carried out appropriately. 

The public interest in the exception being maintained 

  • Disclosure would likely impede the gathering of information and evidence in this and future investigations as those under investigation would be less willing to provide information voluntarily if they thought it would be placed within the public domain ahead of any enforcement decisions.
  • The Council acknowledges that it can obtain information through its statutory powers however, the Council tries to seek information from those under investigation voluntarily.  If the information were to be disclosed it would more than likely adversely affect ongoing and future processing the course of justice as disclosure would provide an indication of the arguments, strengths or weaknesses which the Council has in relation to ongoing enforcement investigations and legal proceedings.
  • There are arguments that the Council’s investigations in this matter require certain information to remain confidential in order to be effective during "live" and "future" investigations. There is a strong public interest in the local authority being able to effectively carry out its legal obligations in relation to planning enforcement investigations without damaging the integrity of any investigations harming the course of justice and the ability of a person to receive a fair trial.
  • It would be unfair to the individual concerned should disclosure go ahead, as should no breach of planning be found, reputational damage could be caused to that individual. As planning enforcement breaches are a legal matter, the individual has the complete expectation that information relating to their property/land, would not be shared within the public domain. 

Conclusion 

After weighing up the competing interests the Council has determined that the disclosure of the above information would not be in the public interest.  The Council considers that the benefit that would result from the information being disclosed does not outweigh the considerations favouring non-disclosure. 

In accordance with the application of Regulation 12(5)(b) of the EIR we will not be providing the information requested in questions 4 and 5 in respect of information held on the Planning Enforcement file.