Planning Enforcement Complaint

Summary

A request was made for details regarding a planning enforcement complaint about a new build house on Kella Road, Sulby. The Department of Environment, Food and Agriculture confirmed holding the information but refused disclosure entirely, citing exemptions for confidential information and ongoing investigations.

Key Facts

• The complaint relates to planning application 15/00980/REM for a new build dwelling in Sulby.
• The Department confirmed that information regarding the complaint is held.
• Disclosure was refused under Section 26 as it would constitute an actionable breach of confidence.
• Additional information was withheld under Section 31 to protect an ongoing investigation that may lead to criminal proceedings.
• The Public Interest Test was applied, weighing transparency against the risk of prejudicing legal action.

Data Disclosed

• 2017-07-12
• 2017-08-11
• 15/00980/REM
• IM94903I
• Section 26
• Section 31
• Town and Country Planning Act 1999
• Freedom of Information Act 2015

Exemptions Cited

• Section 26: Information provided in confidence
• Section 31: Investigations and legal proceedings

Original Request

Planning Enforcement Complaint re: New Build House, Kella Road, Sulby (PA 15/00980/REM)

Data Tables (1)

Full Response Text

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Department of Environment, Food and Agriculture

Rheynn Chymmyltaght, Bee as Eirinys

11th August 2017

Dear

Request under the Freedom of Information Act 2015 Ref: IM94903I Planning Enforcement Complaint PA 15/00980/REM

Thank you for your request received on the 12th July 2017.

You asked:
“This request is to have visibility of all available details, including any photos/maps or written statements submitted as part of a complaint made to the IOM Planning Office/Planning Enforcement. The complaint relates to a new build dwelling located on Kella Road in Sulby and has been made by a 3rd Party. The planning application relevant to this dwelling is 15/00980/REM. The Officer is currently investigating the complaint, however under the Freedom of Information act i would like to view the complaint details.”

Response to your request
The Department can confirm that information relating to this request is held. While our aim is to provide information whenever possible, in this instance some of the information is absolutely exempt from disclosure pursuant to section 26 of the Act, as disclosure would constitute an actionable breach of confidence.

The Department has a duty not to release information provided to it in confidence which, with regard to enforcement matters (where members of the public raise concerns about a property), should be treated in confidence. This information has been imparted in circumstances importing an obligation of confidence and its disclosure would be an unauthorised use of the information to the detriment of the complainant and the subject of the complaint.

26 Information provided in confidence

Information is absolutely exempt information if —

(a) it was obtained by the public authority from another person (including another public authority); and
Assistant Freedom of Information
Co-ordinator Corporate Services Directorate, Thie Slieau Whallian, Foxdale Road,
St John’s, Isle of Man, IM4 3AS Fax no (01624 685851 Email: defa@gov.im
www.gov.im Quoting Ref: IM94903I Your Ref:

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(b) the disclosure of the information to the public by the public authority holding it would constitute a breach of confidence actionable by that or any other person.

While our aim is to provide information whenever possible, in this instance we also hold other information in these files that we are currently unable to provide. The remaining information held is considered exempt from disclosure under section 31 of the Act. The Department has a duty under Part 4 the Town and Country Planning Act 1999 to investigate breaches of planning control and to determine whether an offence has occurred. This has been withheld under the qualified exemption section 31, particularly 31 (1) (a) and (b) and (2).

31 Investigations and legal proceedings

(1) Information held by a public authority is qualified exempt information if it has at any time been held by the public authority for the purposes of —

(a) an investigation that the public authority has a duty to conduct to ascertain whether —
(i) a person should be charged with an offence; or
(ii) a person charged with an offence is guilty of it;

(b) an investigation, conducted by the public authority, that in the circumstances may lead to criminal proceedings being instituted; or

(c) any criminal proceedings that the public authority has power to conduct.

(2) Information is qualified exempt information if —

(a) it was obtained or recorded by the public authority for the purposes of its functions relating to (i) investigations covered by subsection (1); (ii) criminal proceedings that the public authority has power to conduct; (iii) investigations other than investigations covered by subsection (1) that are

conducted by the public authority, by virtue of powers conferred by or under any enactment, for a purpose specified in section 32(3) (purposes for which law enforcement exemption available); or (iv) civil proceedings that are brought by or on behalf of the public authority, which arise out of investigations mentioned in this subsection or subsection (1); and

(b) it relates to the obtaining of information from confidential sources.

Public Interest Test

In assessing where the Public Interest lies in relation to sections 31(1) and 31 (2) of the Act and the release of this information the following factors have been considered.

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Factors in favour of disclosure are:  Release of information adheres to the principles of having an open, transparent and fair planning system.  There is a public interest in knowing how a case was considered and what information was available on which the decisions could be based.  Facilitate accountability and transparency in the spending of public money.  Ensure that due process is carried out and is fair and untainted by conflict or corruption. Factors in favour of maintaining the exemption and withholding the information are:  The information held is related to a planning enforcement investigation that might lead to legal action. The premature release of such information may prejudice any legal action.
 Letters written to the Department to enquire whether development undertaken is a breach of planning are written in confidence. The Department’s Enforcement Policy states that ‘It is current policy to keep the identity of complainants’ confidential’.
 The investigations are ongoing and premature disclosure may present problems for that process.  There is a need to maintain and protect the requirement of fair, balanced and objective decision process for the ongoing investigation.  Both the complainant and the subject need to have confidence in the integrity of the planning enforcement system and the disclosure of information pertinent to a particular complaint may undermine this.  Disclosure of the information may cause the subject of the complaint harm through the suspicion of wrong-doing, even if this is unfounded.  Releasing details that indicate the identity of a complainant is likely to affect future confidential sources coming forward.

In assessing the weight to be attributed to each aspect of these arguments the Department has considered that the information to which this request relates is very recent and disclosure could not only prejudice good government but also has the potential to cause harm to parties involved in the complaint including the complainant and the subject of the complaint.

The Department concludes that the risk of harm from disclosure outweighs any benefit that could be gained by the general public by the information being disclosed.

Based on this request and having balanced the factors in favour of disclosure with those in favour of maintaining the exemption we consider that, in relation to any ongoing investigation, the public interest in maintaining the exemption in section 31 outweighs the public interest in disclosure at this time.

Situation since receipt of request

All of the above is based on the situation when the request was received. Although a determination has now been made in relation to the enforcement complaint, it is still considered too recent to disclose any information at this time, for the reasons set out above.

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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 to the sender of this letter at the address above. An electronic version of the relevant complaint form can be found by going to our website at https://www.gov.im/about-the-government/freedom-of-information/freedom-of-information- review-request . If you would like a paper version of the complaint form to be sent to you by post, please contact us and we 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; 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 rights to review is on the Information Commissioner’s website at: https://www.inforights.im/
Should you have any queries concerning this letter, please do not hesitate to contact the FOI Co-ordinator. Further information about Freedom of Information requests can be found at https://www.gov.im/about-the-government/freedom-of-information

Yours sincerely Assistant FOI Co-ordinator