procurement of eastern area plan inspector

Summary

The request sought details on the procurement process, specific inspectors approached, and conflict of interest protocols for the Eastern Area Plan public inquiry. The Cabinet Office disclosed the names of six inspectors approached and the legal framework for their appointment, while the response was cut off before addressing all points regarding delays and correspondence.

Key Facts

• The appointment of inspectors is governed by Schedule 1, 4.(2) of the Town & Country Planning Act 1999.
• Six specific inspectors were approached for the Eastern Area Plan inquiry: Tony Wharton, Ruth Mackenzie, Brian Sims, Mike Hurley, Gerry Farrington, and Alan Langton.
• Both retired and existing members of the Isle of Man Inspectors panel were contacted directly.
• The Eastern Area Plan inquiry officially closed on 2 October 2019.
• The authority requested clarification on conflict of interest protocols before proceeding with that specific part of the request.

Data Disclosed

• 2021-03-29
• 2021-04-29
• 2021-04-01
• 2 October 2019
• 1999
• 6
• Schedule 1
• 4.(2)

Original Request

a) details of the procurement process for the engaging of the inspector for the eastern area plan public inquiry. b) which inspectors were approached. c) how many inspectors were approached. d) what was the first recorded date published for the eastern area plan public inquiry to take place. e) what was the recorded reasons for the delays to the public inquiry. f) a copy of the recorded reasons for delays to the eastern area plan public inquiry. g) correspondence to the inspector in relation to delays to the public inquiry. h) details of protocols in place, or took place, in respect of addressing conflicts of interest where an inspector may have had an previous interest in the subject matter, may have previously served in a capacity which could not then demonstrate as a matter of public interest, full impartiality to then preside over an inquiry into subjects he had previously commented on. i) provide all copies of correspondence sent to the inspector after the close of the eastern area plan inquiry 2 October 2019 j) provide all copies of correspondence from the inspector to the CO, and or, the forward planning team following the close of the inquiry 2 October 2019. On 1 April 2021 we wrote to you asking for clarification: 'We need some further information from you. In particular, it would be helpful if you could please clarify and provide confirmation about the information you are seeking on point (h). This is very wide-ranging and we would need clarification on the particular case or cases that you are referring to in order to progress this aspect of the request. Please provide specific case references or further information that would help us to clearly identify what you need so that we can look for the exact information that you require.' You replied on 1 April 2021: 'Thank you for your email. Point h) appears very clear- but in summary of h); I request- the protocols in place when the CO engage a Planning Inspector in relation to any previous involvement the Inspector may have had in the subject matter; and protocols and or process in place which would identify if any possible conflicts of interests are evident in the engagement of inspectors in relation to their proposed engagements.'

Data Tables (1)

Data Tables (reformatted)

Full Response Text

Government Office Douglas Isle of Man IM1 3PN Telephone: (+44) 01624 686244 Website: www.gov.im/co

Our ref: 1727858 29 April 2021

Dear ###

We write further to your request which was received on 29 March 2021 and which states:

"a) details of the procurement process for the engaging of the inspector for the eastern area plan public inquiry. b) which inspectors were approached. c) how many inspectors were approached. d) what was the first recorded date published for the eastern area plan public inquiry to take place. e) what was the recorded reasons for the delays to the public inquiry. f) a copy of the recorded reasons for delays to the eastern area plan public inquiry. g) correspondence to the inspector in relation to delays to the public inquiry. h) details of protocols in place, or took place, in respect of addressing conflicts of interest where an inspector may have had an previous interest in the subject matter, may have previously served in a capacity which could not then demonstrate as a matter of public interest, full impartiality to then preside over an inquiry into subjects he had previously commented on. i) provide all copies of correspondence sent to the inspector after the close of the eastern area plan inquiry 2 October 2019 j) provide all copies of correspondence from the inspector to the CO, and or, the forward planning team following the close of the inquiry 2 October 2019. On 1 April 2021 we wrote to you asking for clarification: 'We need some further information from you. In particular, it would be helpful if you could please clarify and provide confirmation about the information you are seeking on point (h). This is very wide-ranging and we would need clarification on the particular case or cases that you are referring to in order to progress this aspect of the request. Please provide specific case references or further information that would help us to clearly identify what you need so that we can look for the exact information that you require.' You replied on 1 April 2021:

“Thank you for your email. Point h) appears very clear- but in summary of h); I request- the protocols in place when the CO engage a Planning Inspector in relation to any previous involvement the Inspector may have had in the subject matter; and protocols and or process in place which would identify if any possible conflicts of interests are evident in the engagement of inspectors in relation to their proposed engagements.'" Our response to your request is as follows: a) details of the procurement process for the engaging of the inspector for the eastern area plan public inquiry. The appointment of an Inspector to conduct a Development Plan Inquiry is covered by schedule 1, 4.(2), Development Plan Procedure, of the Town & Country Planning Act 1999. Please see link below: https://legislation.gov.im/cms/images/LEGISLATION/PRINCIPAL/1999/1999- 0009/TownandCountryPlanningAct1999_6.pdf Retired and existing members of the panel of Isle of Man Inspectors were approached directly in respect of conducting the Area Plan for the East. b) which inspectors were approached. Mr Tony Wharton, Ms Ruth Mackenzie, Mr Brian Sims, Mr Mike Hurley, Mr Gerry Farrington and Mr Alan Langton. c) how many inspectors were approached. 6 d) what was the first recorded date published for the eastern area plan public inquiry to take place. The Preliminary Publicity for the Area Plan for the East was published on 24 February 2017. An indicative timetable within the main consultation document suggested a public inquiry would be in 2018. In March Tynwald 2019, the former Minister for Policy and Reform, Mr Thomas MHK, stated that the “anticipated June 2019 date for the Inquiry was no longer feasible and the Inquiry would not be before September 2019.” In terms of formal publication of a date by way of public notice this was on 31 May 2019. The Notice stated 9 September 2019 for the Inquiry. e) what was the recorded reasons for the delays to the public inquiry. In April Tynwald 2019, the former Minister for Policy and Reform, Mr Thomas MHK, made a statement. This did not explicitly explain any reasons for the delay of the Inquiry from June to September 2019, but did refer to the revision of papers and drafting of development briefs.

f) a copy of the recorded reasons for delays to the eastern area plan public inquiry. While our aim is to provide information whenever possible, under section 20 of the Act, we are not required to provide information in response to a request if it is already reasonably accessible to you, whether free of charge or on payment of a fee. Information relevant to this aspect of your request is available online and as such under section 20(2) (b) of the Act (Information accessible to the applicant by other means), we are not required to provide you with such. However, in the interest of providing advice and assistance, under Section 15 of the Act, please see the link below: https://www.tynwald.org.im/business/hansard/20002020/t190409.pdf g) correspondence to the inspector in relation to delays to the public inquiry. I have attached a copy of the information being released to you. Please see e-mail dated 25 March 2019 which is attached. Please note some information has been redacted as it is personal data, or is outwith the scope of the request. While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information that you have requested because it is absolutely exempt under section 25 of the Act (absolutely exempt personal information). The reasons why that exemption applies are that: • The Cabinet Office is satisfied that the information amounts to personal data of which you are not the data subject; and • The Cabinet Office is satisfied that disclosure of the information would contravene one of the data protection principles as set out at Article 5 of the General Data Protection Regulation as it applies in the Isle of Man pursuant to the Data Protection (Application of GDPR) Order 2018, namely that the Cabinet Office can only disclose the information where it would be fair, lawful and meet one of the conditions for lawful processing in Article 6 and in this case, none of those conditions have been met. h) details of protocols in place, or took place, in respect of addressing conflicts of interest where an inspector may have had an previous interest in the subject matter, may have previously served in a capacity which could not then demonstrate as a matter of public interest, full impartiality to then preside over an inquiry into subjects he had previously commented on. “I request- the protocols in place when the CO engage a Planning Inspector in relation to any previous involvement the Inspector may have had in the subject matter; and protocols and or process in place which would identify if any possible conflicts of interests are evident in the engagement of inspectors in relation to their proposed engagements.” An Inspector is not automatically precluded from conducting inquiries (and reporting and making recommendations) in relation to planning application appeals in an Area which he or she has conducted an Area Plan.

Whether there is any perception of bias (i.e. whether the fair-minded observer, having been informed of all circumstances, would conclude that there was a real possibility of bias) on a planning appeal in an Area where an Inspector has reported will very much depend on the issues determined by the Inspector in the Area Plan inquiry and those which arise in respect of the planning appeal; there may be the odd exceptional planning appeal where a perception of bias arises, for example, because the application raises issues where the Inspector expressed a view contrary to the final content of the Area Plan as approved by Cabinet Office. If an inspector is in any doubt they should raise the issue with the parties to establish whether they are happy for him to proceed. Inspectors are expected at all times to exercise the highest standards of behaviour in compliance with the seven principles of public life: Selflessness, integrity, objectivity, accountability, openness, honesty and leadership. The Inspector or participants in the process can raise any concerns regarding conflicts of interest. i) provide all copies of correspondence sent to the inspector after the close of the eastern area plan inquiry 2 October 2019

I have attached copies of the information that is being released to you. Please see e- mails dated: 27 November 2019 17 February 2020 26 June 2020 While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information that you have requested because it is absolutely exempt under section 25 of the Act and some information has been redacted as it is personal data or it is outwith the scope of the request. The reasons why that exemption applies are that: • The Cabinet Office is satisfied that the information amounts to personal data of which you are not the data subject; and • The Cabinet Office is satisfied that disclosure of the information would contravene one of the data protection principles as set out at Article 5 of the General Data Protection Regulation as it applies in the Isle of Man pursuant to the Data Protection (Application of GDPR) Order 2018, namely that the Cabinet Office can only disclose the information where it would be fair, lawful and meet one of the conditions for lawful processing in Article 6 and in this case, none of those conditions have been met. j) provide all copies of correspondence from the inspector to the CO, and or, the forward planning team following the close of the inquiry 2 October 2019. Please see the copy of the e-mail dated 20 July 2020 attached. Some information has been redacted as it is personal data or outwith the scope of the request.

The reasons why that exemption applies are that: • The Cabinet Office is satisfied that the information amounts to personal data of which you are not the data subject; and • The Cabinet Office is satisfied that disclosure of the information would contravene one of the data protection principles as set out at Article 5 of the General Data Protection Regulation as it applies in the Isle of Man pursuant to the Data Protection (Application of GDPR) Order 2018, namely that the Cabinet Office can only disclose the information where it would be fair, lawful and meet one of the conditions for lawful processing in Article 6 and in this case, none of those conditions have been met. Please quote the reference number 1727858 in any future communications.

Your right to request a review

If you are unhappy with this response to your freedom of information request, you may ask us to carry out an internal review of the response, by completing a complaint form and submitting it electronically or by delivery/post.

An electronic version of our complaint form can be found by going to our website at https://services.gov.im/freedom-of-information/Review . If you would like a paper version of our complaint form to be sent to you by post, please contact me and I will be happy to arrange for this. Your review request should explain why you are dissatisfied with this response, and should be made as soon as practicable. We will respond as soon as the review has been concluded. If you are not satisfied with the result of the review, you then have the right to appeal to the Information Commissioner for a decision on; 1. Whether we have responded to your request for information in accordance with Part 2 of the Freedom of Information Act 2015; or 2. Whether we are justified in refusing to give you the information requested.
In response to an application for review, the Information Commissioner may, at any time, attempt to resolve a matter by negotiation, conciliation, mediation or another form of alternative dispute resolution and will have regard to any outcome of this in making any subsequent decision. More detailed information on your right to a review can be found on the Information Commissioner’s website at www.inforights.im. Should you have any queries concerning this letter, please do not hesitate to contact me. Further information about freedom of information requests can be found at www.gov.im/foi. I will now close your request as of this date.

Yours sincerely