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Brentwood Borough Council

FOI 6542

Agreement by Deed Pursuant to Section 106 of the Town and Country Planning Act 1990 and Section

Request

Agreement by Deed Pursuant to Section 106 of the Town and Country Planning Act 1990 and Section 111 of the Local Government Act 1972 and relating to land at the rear of 40-42 Crossways, Shenfield, Essex - BRW/349/88

I should like to receive the following within the time limits prescribed therein. I will arrange for a payment of £10 to be made for the Subject Access Request today.

Please provide me with:
- all communications and notes of meetings held by the Council relating to me with regards to the subject matter herein;
- all information (including legal and other advice, evidence, discussions and communications) held by the Council in relation to this subject matter including communications with external third parties; and
- also advise whether constitutionally the Ward Councillors would be conflicted in being asked to object or make representations with regard to the Council's decision not to enforce action in this case.





Response

Question 1: “All information (including legal and other advice, evidence, discussions and communications) held by the Council in relation to this subject matter including communications with external third parties.”

Response: I have attached a bundle of 85 pages – some of which you will note are double sided and some of which contain black markings which are generally known as “redactions.”

The limited redactions have been applied pursuant to the fair processing principles of the Data Protection Act 1998 / Freedom of Information Act 2000 – in particular where “third party personal data” is present it is a requirement that the relevant third party consent to the disclosure of their personal data and / or it is in the public interest to disclose that personal data – Section 40(2) FOI Act 2000.

“Personal Data” is defined in the Data Protection Act 1998 as follows: “data that relates to a living individual who can be identified.” Therefore personal names, addresses, emails, telephone numbers of third party living individuals that would lead to such identification been redacted as we have no consent to disclose this data as required under the 1998 Act. I have also carefully weighed whether, in the absence of such consent, the public interest favours disclosure of such third parties’ personal data and in all the circumstances I have concluded it does not, as it neither materially affects our response and was not within the legitimate expectations of the parties.

I can confirm that the planning section did receive legal advice from its in-house legal advisers in respect of this matter. However I have not included such legal advice in the bundle of documents on the grounds that such advice from a solicitor to a client is covered by legal professional privilege – Section 42 FOI Act 2000.

This is a qualified exemption under the 2000 Act and subject to a “public interest test” which I have applied by considering whether the public interest in maintaining the exemption outweighs the public interest in disclosure.

The general public interest inherent in this exemption will always be strong due to the importance of the principle behind legal professional privilege, namely, safeguarding openness in all communications between client and lawyer to ensure access to full and frank legal advice, which in turn is fundamental to the administration of justice. I do not consider there is a sufficient contrary interest to discharge this balance in favour of maintaining client / lawyer confidentiality.

Question 2: “Also advise whether constitutionally the Ward Councillors would be conflicted in being asked to object or make representations with regard to the Council's decision not to enforce action in this case”

Response: Whilst this appears not be a Freedom of Information request as such, rather a request for legal advice I am happy to respond as follows: At Brentwood Borough Council officers write reports on planning enforcements cases and submit them via a weekly list system to elected Members. Ward members are able to ‘call in’ the case to be debated and a course of action agreed by planning committee. In this case the Ward Member does not sit on the planning committee and will not be able to determine the outcome of the case should it go to committee. Referrals to planning committee must be agreed by the chair first. Clearly if a Member appeared at committee as an objector they would be precluded from being part of the decision making body on the grounds of natural justice and predetermination.

Subject Access Request

Question 3 “I will arrange for a payment of £10 to be made for the Subject Access Request today. Please provide me with: - all communications and notes of meetings held by the Council relating to me with regards to the subject matter herein”

Response: The only information we hold are the letters of objection included within the FOI request; council officers have not held a meeting with yourself and therefore we have no records of any minutes.