[Reposted] Challenging the North London Waste Authority on Freedom of Information Act requests

Driftwood (struggling to read the fine print): It says the, uh, "The party of the first part shall be known in this contract as the party of the first part." How do you like that? That's pretty neat, eh?
Fiorello: No, it's no good.
Driftwood: What's the matter with it?
Fiorello: I don't know. Let's hear it again.
Driftwood: It says the, uh, "The party of the first part shall be known in this contract as the party of the first part."
Fiorello (pausing): That sounds a little better this time.
Driftwood: Well, it grows on ya. Would you like to hear it once more?
Fiorello: Uh, just the first part.
Driftwood: What do you mean? The party of the first part?
Fiorello: No, the first part of the party of the first part.
Driftwood: All right. It says the, uh, "The first part of the party of the first part shall be known in this contract as the first part of the party of the first part shall be known in this contract" - look, why should we quarrel about a thing like this? We'll take it right out, eh?

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Bestway Holdings Ltd

Complaint under s.50 of the Freedom of Information Act 2000 and under reg. 18 of the Environmental Information Regulations 2004

ATTACHMENT TO COMPLAINT

Background

1. Bestway Cash & Carry Limited is a wholly-owned subsidiary of Bestway (Holdings) Limited (“Bestway”), the complainant. Their interests in the information are coincident and mutual.

2. Bestway Cash & Carry Limited and Bestway together own a freehold interest in property at Geron Way off the Edgware Road, London (“the Bestway Site”). The Bestway Site is located within the London Borough of Barnet (“LB Barnet”).The location of the Bestway Site is shown coloured green on the plan at Tab 1. Bestway has for many years carried on a cash-and-carry business at the Bestway Site, with a current turnover at that site of in excess of £50 million p.a. The Bestway Site provides a wholesale facility for local small businesses and it has more than 3,000 regular customers.

3. The North London Waste Authority (“NLWA”) is a waste disposal authority that arranges the disposal of waste collected in the seven London boroughs of Barnet, Camden, Enfield, Hackney, Haringey, Islington and Waltham Forest. The NLWA arranges the transport and disposal of waste collected by the seven north London boroughs.

4. According to the NWLA’s web-site:

“The NLWA works hard to ensure residents are kept informed about waste issues and are given the opportunity to input into decisions. Residents have and will be consulted where appropriate in relation to waste and waste planning.”

5. The North London Joint Waste Strategy (“NLJWS”) provides the strategic framework for municipal waste management in North London for the period 2004 - 2020. The NLJWS sets out the targets for reducing, reusing and recovering a greater proportion of the municipal waste which is generated in the North London Waste Authority area and for reducing the amount which is sent for disposal to landfill. The NLJWS completed the process of adoption by all eight partners (Barnet, Camden, Enfield, Hackney, Haringey, Islington, Waltham Forest and the NLWA) in February 2009. A summary of the strategy appears at this link. A complete copy of the strategy appears at this link.

6. As part of the NLJWS, the NLWA operates a waste transfer facility at Hendon (“Hendon Transfer Station”) which is in LB Barnet. Waste from the eight north London Boroughs is transported out of London by rail through the Hendon Transfer Station.

7. The Brent Cross Shopping Centre (“Brent Cross”) is within LB Barnet. The Hendon Transfer Station is opposite the Bestway Site, on the other side of the railway tracks to the east of the Bestway Site. Its location is shown coloured pink on the plan at Tab 1. LB Barnet produced a Unitary Development Plan which included a section dealing with the creation of a new town centre by the proposed expansion of Brent Cross: for details click. This was also dealt with in Supplementary Planning Guidance document to the UDP.

8. On 26 March 2008 a group called “The Brent Cross Cricklewood Development Partners” (“the Developers”) submitted an outline planning application to LB Barnet for the comprehensive regeneration of Brent Cross and the adjacent Cricklewood area (Application Number C/17559/08) (“the Development Proposal”). The Development Proposal covers an area of approximately 151 acres, which is defined to the west by the Edgware Road (A5) and the Midland mainline railway line and to the east by the A41, and is bisected east to west by the A406 North Circular Road. It is adjacent to Junction 1 of the M1 (Staples Corner) and includes Brent Cross and the bus station to the north of the North Circular as well as the existing Sturgess Park. It would involve the transformation of Brent Cross, the creation of up to 7,500 new homes, a substantial new commercial district, and a new high street with parks and some open spaces.

9. The Development Proposal proposes to relocate the Hendon Transfer Station — which is within the 151 acres of the Development Proposal — to the Bestway Site. In order to achieve this, LB Barnet would need to use its compulsory acquisition powers. LB Barnet has not, as yet, made any of the necessary resolutions needed to effect a compulsory acquisition.

10. In considering the Development Proposal, LB Barnet prepared a number of reports, which considered at various points the Hendon Transfer Station and its proposed replacement:

1. 18-19 November 2009, Planning and Environmental Committee, Report and Addenda, where the Hendon Transfer Station is dealt with at pp 11, 15, 199 and 260. The Report advises that the Hendon Transfer Station “...will be developed in partnership with the North London Waste Authority who will vacate the existing Hendon Waste Transfer Station, the site of which is required for intense town centre redevelopment. It is intended that this facility will sort material that can be recycled and will treat non-recyclable waste to enable it to be converted for a fuel for the CHP.” (p 15)
2. 29 July 2010, Planning and Environmental Committee, Report and Addendum, which acknowledged the potential for the proposed new waste transfer station to have a “significant adverse environmental impact” (p. 113).
3. 20 September 2010, Planning and Environmental Committee,Report and Addendum, where Bestway’s objections to the relocation of the Hendon Transfer Station are referred to (p. 10).
4. 28 October 2010, Officer Delegated Report, where the proposals for the replacement waste transfer site are dealt with a pp. 18, 23, 39 and 156.

11. On 28 October 2010 LB Barnet granted planning permission for the Development (“the Planning Permission”): click here. The Planning Permission defined (p.180) “the Waste Handling Facility” as being:

“the facility for handling waste in the Development to be provided as Critical Infrastructure in accordance with the Details to be approved under Condition 41 of this Permission and paragraph 17 of Schedule 2 to the Initial Planning Agreement and with the parameters and principles contained in paragraphs 2.19, 2.55 – 2.57, and Table 8, and Appendix 15 of the DSF and Parameter Plan 018 including mechanical recycling facilities and which is to be located in the general vicinity of Plot 63 within the Railway Lands Zone and within a building of up to 24,619 m2 gross external floorspace (or such larger building as may be approved in an Additional Planning Permission) to replace the Hendon Waste Transfer Station.”

The consequential relocation of the Bestway Site was adverted to in 3B.4 (p.189). The Planning Permission touched upon Hendon Transfer Station and the effect upon waste at pp. 100, 189, 194, 199, 204 and 220.

The requests

12. Bestway has made two separate requests for information to the NLWA, the responses to which form the basis of this complaint:

1. By email of 13 December 2010 at 9:34hrs from Bestways' Head of Property (Malcolm Carter) to the NLWA (Andrew Lappage and Barbara Herridge) seeking the information used in the Waste and Resources Assessment Tool for the Environment (“WRATE”) for the Development Proposal (so far as it related to the replacement for the Hendon Transfer Station) that the NWLA had “redacted” (“Request 1”). Request 1 was reiterated and clarified by letter from Malcolm Carter to Ms Herridge dated 17 December 2010. A copy of Request 1 and the 17 December 2010 letter appear at Tab 2.
2. By email of 6 January 2010 at 9:28hrs from Malcolm Carter to Barbara Herridge seeking:
   1. copies of all written correspondence and/or related information between LB Barnet and the NLWA relating the NLWA PFI scheme concerning the Hendon Transfer Station and its future land use or any proposed or potential land sale and any correspondence between the Developers or LB Barnet, created, amended or received by the NLWA over the period 1 November 2009 to 6 January 2011;
   2. copies of documents relating to the North London Waste Plan, including the consultation response summary, created, amended or received by the NLWA over the period 1 November 2009 to 6 January 2011;
   3. a copy of the current NLWA outline business case, including any revisions, created, amended or received by the NLWA over the period 1 November 2009 to 6 January 2011; and
   4. a copy of the NLWA’s code of conduct for its board members 
   (“Request 2”). A copy of Request 2 appears at Tab 3.

NLWA’s responses

13. The NLWA’s response to Request 1 and Request 2 have been as follows:

1. By email dated 4 February 2011 the NLWA responded to both requests, a copy of which response appears at Tab 4. 
• In relation to Request 1, the NLWA maintained that the material was “confidential”, although the basis for that confidentiality was unstated and not apparent from the response itself. In relation to wasteflow information, the NLWA refused to disclose it on the basis that it was held by the NLWA’s advisors. The response is misconceived, as information held by another person on behalf of a public authority is treated as being held by that public authority: FOIA s 3(2), EIR reg 3(2).
• In relation to Request 2, some was refused, some it was said would be provided later and the rest it was said was already publicly available. The basis for refusal was that “your request is more appropriately addressed to the North London Waste Plan team.” In fact, this is a misconceived basis for refusal: the only issue is whether the NLWA held the information requested, not whether someone else also held the information.
2. By email dated 11 February 2011 the NLWA provided a further response, a copy of which appears at Tab 5. This was confined to Request 2. It provided some, but not all of the information sought under (iii) of Request 2. No explanation was given for the refusal to provide the balance of the material, nor the matters within Request 2 that remained outstanding. By emails dated 14 February 2011 and 2 March 2011 from Malcolm Carter to Barbara Herridge, Bestway insisted upon a response on the outstanding elements of Request 1 and Request 2: a copy of those emails appears at Tab 6.
3. By email dated 4 March 2011 the NLWA provided a further response, a copy of which appears at Tab 7. This was confined to Request 2. It provided one document, but by no means all, of the information sought under (i) of Request 2. No explanation was given for the refusal to provide the balance of the material. By email dated 7 March 2011 from Malcolm Carter to Barbara Herridge, Bestway insisted upon a proper response. Barbara Herridge replied by email dated 9 March 2011, maintaining that she had supplied all the material falling within the terms of the request. By email dated 10 March 2011 from Malcolm Carter to Barbara Herridge, Bestway disabused Ms Herridge. A copy of those emails appears at Tab 8.
4. By email dated 18 March 2011 the NLWA professed to have mis-read part (i) of Request 2 and that it was treating the correction of its own mistake as a new request for information. A copy of this email appears at Tab 9. Bestway responded to this by email dated 18 March 2011, a copy of which is also included at Tab 9. By emails dated 25 March 2011 (copies at Tab 10) Bestway complained to the NLWA about the time being taken to answer Request 2.
5. By email dated 4 April 2011 the NLWA identified further documents falling within the terms of Request 2, part (i). It supplied all of them, except three documents for which exemption was claimed under FOIA ss 42 and 43. A copy of the email appears at Tab 11.
6. Emails continued between NLWA and Bestway on 5 April 2011. Copies are enclosed at Tab 12.
7. By email dated 12 April 2011 the NLWA identified further documents falling within the terms of Request 2, part (i). This identified a further 10 documents, all of which were withheld under FOIA ss 42 and 43. A copy of the email appears at Tab 13.

Internal review

14. By email dated 25 March 2011, Bestway sought internal review of the NLWA’s decisions on Request 1 and Request 2. A copy of the email appears at Tab 14. By email dated 28 April 2011, the NLWA reiterated its decisions. A copy of this email appears at Tab 15.

The complaint

15. Bestway complains under FOIA s 50:

1. That the NLWA has not identified all the information that it holds that answers the terms of Request 1 and Request 2. 
2. That the NLWA has wrongly treated all the information answering the terms of Request 1 and Request 2 as falling withing FOIA, whereas some, most or all of the information is governed by the Environmental Information Regulations 2004. 
3. That in any event the NLWA has not provided a proper response to Request 1 and to Request 2 in that the responses (including the response on internal review) do not identify all the information answering the terms of the request, do not consider whether or to what extent the information is environmental information, do not set out sufficiently the basis upon which claimed exemptions apply, and do not consider the public interest balancing test. 
4. That in any event the NLWA did not respond within the time prescribed by FOIA and the EIR. 
5. That at no time did the NLWA comply with its duty to assist an applicant.

The nature of the information requested

16. Although Bestway does not have sight of the balance of the information falling within the terms of Request 1 and Request 2, having regard to the material that has so far been disclosed by the NLWA and to the terms of the request, it appears likely that all, most or some of it constitutes “environmental information” as defined by EIR reg 2(1). In particular, paragraph (b) of that definition provides that it includes:

“...information in written, visual, aural, electronic or any other material form on...factors, such as ....waste...affecting or likely to affect the elements of the environment [such as air and atmosphere, water, soil, land, landscape and natural sites....]” 

Further, paragraph (c) of that definition provides that it includes:

“...measures (including administrative measures), such as ...policies,...plans, programmes..., and activities affecting or likely to affect the elements and factors referred to in...(b) as well as measure or activities designed to protect those elements.”

Further, paragraphs (e) and (f) of the definition are also relevant. 17. Accordingly, depending on the information that is found to be captured by the terms of Request 1 and Request 2, the disclosure of all, most or some of it falls to be determined by reference to the EIR, rather than FOIA.

The exemptions invoked

18. The exemptions invoked by the NLWA are under the FOIA (ss 42 and 43), not the EIR. Those exemptions are not reproduced in the EIR, with there being material differences between the two exemptions in the FOIA and the closest analogues in the EIR.

19. Even within the context of the FOIA, the NLWA has not made out the applicability of the exemptions:

1. In relation to FOIA s 42, the NLWA has not set out a principled basis upon which each item of information for which it is claimed is information in respect of which a claim to legal professional privilege could be maintained in legal proceedings. Based upon the description given, Bestway considers that invocation of the exemption is misplaced. 
2. In relation to FOIA s 43, there is nothing that objectively supports the say-so of the NLWA that the disclosure of each item of information for which this exemption is claimed would or would be likely to prejudice the commercial interests of any person. It is notable that the NLWA has not:
   • identified the commercial interest that falls to be prejudiced;
   • identified how that commercial interest would or would be likely to be prejudiced;
   • identified what the prejudice would be;
   • attempted to work out the probability of that prejudice coming to pass were the information disclosed; or
   • identified the person whose commercial interests are said would or would be likely to be prejudiced.

The public interest in disclosing the requested information

20. Furthermore, both the exemptions invoked are not absolute. Even if either exemption did apply:

• the public interest in maintaining the exemption is, at best, modest; and 
• the public interest in disclosing the information is very significant indeed. 

21. The public interest in the disclosure of this information is evidenced by the long-running process concerning the Development Proposal set out in the linked documents. The importance of the public being fully informed about all aspects of the proposal cannot be gainsaid. The efficacy of public participation is only as good as the information the public has with which to participate. Public participation in matters relating to the environment has a particular premium, which is reflected in the special regime relating to environmental information and the Aarhus Convention from which the EIR are derived. The public interest in disclosing the requested information is thus particularly compelling. It is notable that the NLWA does not appear to have turned its mind to this at all. Any after-thoughts that it might have on this subject are to be treated cautiously.

Conclusion and urgency

22. Bestway asks that the Information Commissioner upholds the complaints, if needs be requiring the NLWA to produce to the Commissioner all the information answering the terms of Request 1 and Request 2 in order to be able to deal with the complaints.

23. Bestway asks that the Information Commissioner direct that the NLWA provide Bestway with a copy of all the information that the NLWA holds (whether itself or by those on its behalf) answering the terms of Request 1 or Request 2.

24. Because of the imminence of important, irrevocable decisions to which the requested information relates or touches upon, Bestway asks that the Information Commissioner deals with this complaint as a matter of urgency.

WELL-KNOWN QC

20 May 2011