FI16734

Request

1. I am writing to request information under the Freedom of Information Act 2000. Please provide a copy of the most recent Quarterly Planning Enforcement Report prepared for Members of the Planning Committee (discussed/noted in closed session at the 22 January Planning Committee meeting. If the report covers multiple quarters, please provide the most recent complete report available at the date of this request. 

If you consider that any part of the report is exempt from disclosure, I request that you: 

Provide a redacted version of the report with only the exempt information removed; and clearly specify which exemption(s) under the Freedom of Information Act 2000 you are relying upon; and provide your reasoning for applying those exemption(s), including the outcome of any required public interest test. 

2. In the event that the entire report is considered exempt, please provide at minimum: 

• The total number of live enforcement cases at quarter end
• The number of new cases opened during the quarter
• The number of cases closed during the quarter
• The number and type of formal enforcement notices issued
• Any high-level performance data or statistical summaries
• Any policy or procedural updates included within the report
• Any reports/organograms concerning any restructuring of the DDC Planning Enforcement Team or Teams.

Response

1. The Council considers that the Quarterly Planning Enforcement report is exempt from disclosure under Regulation 12(5(b) of the Environmental Information Regulations.

2. As follows:

• 117.
• 58. 
• 81.
• 1 Listed Building Enforcement Notice, 1 Temporary Stop Notice and 1 Breach Of Condition Enforcement Notice
• The Council does not hold this information.
• The Council does not hold this information.
• The Council does not hold this information.

 

Internal Review Documents

 

Internal Review Request:

I am writing to request an internal review of the Council’s response to my request for the most recent Quarterly Planning Enforcement Report.

While we note that the Council has relied on Regulation 12(5)(b) of the Environmental Information Regulations 2004, we consider that the exception has been applied too broadly. The refusal to release the requested information appears to treat the entire report as exempt on the basis that it contains information relating to ongoing enforcement investigations. However, it is my understanding that Regulation 12 requires exceptions to be interpreted "restrictively" and applied only to the specific information/cases that could potentially adversely affect the course of justice etc.

In addition, it does not appear that DDC has given adequate consideration to the possibility of partial disclosure. In particular, it should be possible to disclose a redacted version of the report with information relating to individual enforcement cases thus releasing other content such as:

• summary narrative sections;
• performance commentary;
• contextual information about enforcement activity;
• any non-case specific analysis or discussion.

We also note that the Council has already disclosed several statistics from the report. This suggests that at least some elements of the report can be released without prejudicing investigations.

The public interest test set out in the response appears to rely heavily on general arguments regarding investigatory confidentiality but does not explain why disclosure of a redacted report would specifically prejudice the course of justice.

As we are sure DDC is aware, there is, throughout the district strong public interest in transparency around planning enforcement activity, including the resourcing, priorities and effectiveness of enforcement services. This is particularly relevant where reports are prepared for elected Members (see more below).

As we are all aware, the original request concerns a report prepared for elected councillors. The ICO repeatedly states that when information is (i) prepared for elected members (ii) used to inform democratic oversight and (iii) discussed at committee meetings then the public interest in transparency is significantly stronger. There is strong FOI opinion that If councillors receive a report, but the public cannot see it, the ICO often considers that "meaningful democratic scrutiny is undermined". SPC is aware that in several ICO decisions Local Planning Authorities  have been told to release redacted enforcement reports because they were member briefing documents rather than operational investigation files.

For the above reasons, we kindly ask that the Council reconsider whether a redacted version of the report can be disclosed, removing only those parts that would genuinely prejudice live enforcement investigations.

 

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, which has already been detailed in the original response to you.     As the information you are seeking relates to planning applications and enforcement, this is a ‘measure’ that affects the land and,  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.   

Part A – Enforcement Documents/Reports

The report you have requested is classed as confidential and is intended to provide Planning Committee Members with an overview of all formal enforcement action and enforcement appeals that have taken place since the previous report (August 2025), provide any updates on cases from the last report and to alert Members of cases that are likely to be subject to formal action in the coming quarter.   The summaries contained within the report are current and provide updates on investigations 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.  These 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

The 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 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 applicants have legitimate expectations that the information would not be shared into the public domain.  Disclosure of the data into the public domain would provide an indication of the arguments, strengths or weaknesses which the council had considered, and as such would unbalance the level playing field under which adversarial proceedings in a criminal prosecution are meant to be carried out, when dealing with these and future similar cases. 

Disclosure of information relating to such inquiries would adversely affect the course of justice and any potential enforcement action for these cases and any future cases,  through impacting public confidence in such inquiries being undertaken both appropriately and with due regard to the rights and expectations of the 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 has been correctly applied in this instance.  

Public interest test

In applying the above exception, consideration needs to be given to the public interest, balancing the public interest arguments for disclosing the information against those for upholding the exemption.  The original response to you detailed a number of factors for and against disclosure.  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.  

In light of the above and the content of the confidential report I do not believe it would be appropriate to provide a redacted version.  In addition, the amount of redactions that would need to be undertaken could lead to assumptions being made.  When providing information in response to an EIR or FOIA request we must consider that the disclosure is to the ‘World at large’ and not just the person requesting the data.   The data, in whatever format, whether in full or redacted, is then in the public domain.  

For information, documents relating to planning appeals are publicly available and can be viewed here Simple Search 

Based on my review of your original request, the response you received and the legislation,  I am of the opinion that your request has been considered under the correct legislation and that the exception under Regulation 12(5)(b) has been appropriately applied.  I therefore must conclude that the information has been correctly withheld.