29.6.16. Standard FOI request via the WhatDoTheyKnow site for details of "Overage" agreements in last 12 years
7.7.16.Wandsworth to NJH
Request for Information - 2016/13258 - Overage agreements for property developments
I refer to your request for information received on 29/06/2016.
Please see the information below in response to your request: -
Please provide me with details of and the current status for all cases in the last 12 years where the Council has sold land to a private developer and included an Overage agreement under which the Council would share in any profit made by the developer.
In accordance with the provisions defined under section 12 of the Freedom of Information Act 2000 we are not obliged to comply with your request as the process of identifying, locating, retrieving and, where appropriate, extracting the information would exceed the 'appropriate limit' as defined by the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004.
The Council’s Finance Department have advised that over the last 8 years alone, the Council has sold at least 450 properties, some of which have complex overage clauses. As separate lists of properties that have overage clauses are not retained in an easily retrievable format, so all the files that have been archived would need to be recalled, reviewed and any pertinent information collated. To review, extract and collate relevant data from each file alone will take 30 minutes per file, equating to a total of 225 hours. You may wish to revise the scope of your request in order to try and bring it within the cost limit, but Finance staff have advised that if the overage clause is still live the information will be treated as confidential and would not be released.
I hope this information meets your needs. If you do not understand the information provided or wish to discuss anything further, please feel free to contact me and I, or another member of the team will be able to assist you.
Please note, all material provided by Wandsworth Council in response to your request for information is for your personal, non-commercial use. Wandsworth Council reserves all rights in the copyright of the information provided. Any unauthorised copying or adaptation of the information without express written confirmation from Wandsworth Council may constitute an infringement of copyright. Any intention to re-use this information commercially may require consent. Please forward any requests for re-use of information to the FOI officer.
If you are dissatisfied with the information provided in relation to your request you may make representations to the Chief Executive.
Correspondence should be addressed to: Corporate Support and Information Team, Room 149, Wandsworth Town Hall, Wandsworth High Street, London, SW18 2PU.
If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:
Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow ,Cheshire, SK9 5AF.
Regards, Sue Murray, Corporate Support and Information Team
[1][Wandsworth Borough Council request email]
17.7.16 NJH to Wandsworth Council by letter
Corporate Support and Information Team, Room 149,Wandsworth Town Hall, Wandsworth High Street, London, SW18 2PU.
17 July 2016
Dear Sirs
Your Reference 835475
I refer to the above FoI request submitted through the WhatDoTheyKnow site and your refusal to provide information on overage agreements on the grounds of cost. This request is made by me directly ie not through the WhatDoTheyKnow site.
I am convinced it is in the public interest for disclosure to be made and that such a reason for refusal is not justified where public money is involved when land owned by the public is sold. It is in the interests of Councillors and the public that such information is available – as it is with other (though not all) inner London Boroughs who have responded to similar requests.
Please therefore treat this letter as an appeal to be dealt with as a complaint through the Council’s Internal Review procedure.
Yours truly, Nicholas Harding
21.7.16 Wandsworth to NJH
Dear Mr Harding,
Further to your letter dated 17th July, received in this office today, I confirm that your request will be dealt with as an internal review and that you will hear from the Chief Executive in due course.
Yours sincerely, Sue Murray
Corporate Support & Information Officer. 8 foi@wandsworth.gov.uk ( 020 8871 8119
26.9.16 Wandsworth to NJH rejecting appeal on grounds of cost
Dear Mr Harding,
Request for information -Internal review - 2016/13258 - Overage Agreements
I write in response to your letter dated 17th July 2016. This has been treated as a request for internal review of the Council's response to your request for information relating to overage agreements. Information was withheld under section 12 of the Freedom of Information Act (the 'appropriate limit').
For ease of reference, a schedule of the correspondence is attached, Appendix (i).
On 29th June 2016 you submitted the following request for information relating to overage agreements:
If •• details of and the current status for a/l cases in the last 12 years where the Council has sold land to a private developer and included an Overage agreement under which the council would share in any profit made by the developer".
The Council's response of ih July 2016 stated that to identify, locate, retrieve and extract the detailed information requested would take in excess of 18 hours and, under section 12 of the Freedom of Information Act (FOIA), the Council was not obliged to comply with your request. You were also advised that, if you were to reduce the scope of your request, information on live overage clauses would be considered confidential and not disclosed.
My first consideration was whether your request was considered under the appropriate access to information regime. Where information requested is deemed to be environmental information
the appropriate statutory provisions regarding access are contained within the Environmental Information Regulations (EIR) rather than the Freedom of Information Act.
Your request for information was in relation to overage agreements, which are contract clauses in sales of land from the Council to a developer. The land which was sold, and subject to the
overage clause, is an 'element of the environment' (land) within the meaning of regulation 2(1)(a), the contract of purchase, and any overage clauses, would fall within the definition of environmental information set out in regulation 2(1)(c) - measures affecting or likely to affect the elements and factors referred to in (a) and (b). Your request should therefore have been considered under the Environmental Information Regulations (EIR) rather than FO/A. In the
circumstances I have focused my review on now establishing the status of the information held under the provisions of the EIR.
Further to this I am of the opinion that the information you are requesting should be withheld under regulation 12(4)(b),manifestly unreasonable, of the (EIR). The EIR allows public authorities to refuse a request for information that is manifestly unreasonable because the cost of compliance with the request would be too great.
In the Council's response of 7th July 2016 you were advised that in the last 8 years alone the Council had sold in excess of 450 properties, some of which have complex overage clauses. A
separate list of those with overage clauses has not been retained and it was estimated that "to review, extract and collate relevant data from each file alone will take 30 minutes per file, equating to a total of 225 hours".
I have now been advised that as your request was also for "the current status" of these clauses it would take even longer than originally estimated as this was not included within the time estimate of the Council's first response. In order to identify the current status it would be necessary to carry out a further search at the Land Registry. In total, for just the last 8 years of information it is estimated that for each case it would take between 45-60 minutes per file, which is in excess of 337.5 hours.
The Council considers that the significant burden that this would place on Offcers is not in the public interest and relies on regulation 12(4)(b) of the EIR in order to deem it manifestly
unreasonable.
I apologise that your request was not originally considered under the appropriate access to information regime. However, I have found that the work undertaken in estimating the time it
would take to collate just some of the information very useful in coming to my final conclusion. As I have detailed above I am of the opinion that it is not in the public interest to provide this information due to the significant burden it would place on the Officers concerned.
If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK95AF
Tel: 0303 123 1113
If you require any further information please do not hesitate to contact the Corporate Support and Information Team on 020 8871 7202 or via email at foi@wandsworth.gov.uk
Paul Martin
Chief Executive and Director of Administration