EIR - Kilburn Square Estate [Feb 2023]

Your clarifications

1. My request was filed on 12 December 2022. The most recent item of correspondence shown is dated 9 December; was there nothing further between those dates?
2. The email of 8 December at 12.47 from the Senior Area Manager raised a series of questions and required assurances; was there no LB Brent reply before 12 December?
3. The content of an email dated 22 November 2022 at 09.32 has been heavily redacted; can you please share the justification for that?

Our response

1. Communications with LB Brent resumed on 12 December 2022. The scope of your request covers the period up until the date your request is received. This email has been included along with the other correspondence between the GLA and Brent between 12 December 2022 and 5 February 2023 in response to your new EIR request below. 

2. The responses to this email have been included in response to your new EIR request below.

3. The majority of the contents within this email relates to other projects that Brent are delivering and are therefore not linked to the Kilburn Square Infill project, however upon review we did mistakenly redact a small amount of information relating to the scheme as follows:

Kilburn Square 

'The planning submission milestone date on OPS will need to be updated as it is currently 30 September 2022. Now this has slipped a month I suspect the whole programme will need updating. SoS was previously forecast in Feb for a planning submission date in September. Can you confirm that Brent remain on track to SoS by Feb-23 despite the delay in submitting planning and update any amended milestone dates on OPS?

As above, what is important here is that we understand from Brent how they will meet the requirements of the Capital Funding Guide if Brent are looking to claim the start on site milestone before the main build works contract has started. Can you please review the scenarios set out in the CFG, and outline how these requirements will be met?' 

Your new EIR request (no.1)

1.    Has the GLA agreed to any additional grant funding for LB Brent’s Kilburn Square Infill project? And if so, with what conditions?

2.    Has the GLA held discussions with LB Brent about moving the Kilburn Square project (now not scheduled for Planning Committee approval until 15 March 2023) from the 2016-23 programme to the 2021-2026 one? If so, with what outcome – or by when might an agreement be reached?

3.    Please provide copies of all correspondence between GLA Housing and Land and LB Brent between 10 December 2022 and the current date concerning the Kilburn Square Infill Project.

Our response

1, The GLA approved an updated funding allocation for LB Brent’s Kilburn Square Infill project on 16 December 2022:

The conditions of the funding are set out in the following documents:

• The Building Council Homes for Londoners (BCHfL) contract
• The Mayor’s Care and Support Specialised Housing Fund (MCSSH) contract for Local Authorities
• The GLA’s Affordable Housing Capital Funding Guide

The grant allocation amounts are considered to be exempt from disclosure by virtue of the disclosure-exception provision found under regulation 12(5)(e) of the EIR. Regulation 12(5)(e) applies when disclosure would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law.

If we were to release the grant allocation amounts it would be prejudicial to ongoing negotiations with the GLA’s Investment Partners. The information is covered by the common law obligation of confidentiality, the information is not trivial in nature, nor is it in the public domain. Disclosure of the information would inevitably harm the confidential nature of it and therefore the exemption at Regulation 12(5)(e) is engaged in respect of disclosure of the redacted information. 

Regulation 12(5)(e) is as qualified exemption from our duty to disclose information under the EIR, and consideration must be given as to whether the public interest favouring disclosure of the information covered by this exemption outweighs the public interest considerations favouring maintaining the exemption and withholding the information. The GLA acknowledges that there is a public interest in the delivery of the Affordable Homes Programme. However, it is not in the public interest to release information which would be likely to prejudice the position of our partners in future negotiations and any procurement exercises. We therefore find that the public interest is balanced in favour of non-disclosure because of the harm its release would cause.

2. The GLA has not had any discussions with LB Brent about moving the Kilburn Square project from the Affordable Homes Programme 2016-2023 programme to the Affordable Homes Programme 2021-26 programme. 

3. Please find attached the information we hold within the scope of your request.  Please note that redactions have been made to schemes which are unrelated to the Kilburn Square Redevelopment. 

A small amount of content is exempt from disclosure and is considered to be exempt from disclosure by virtue of the disclosure-exception provision found under regulations 12(5)(e) of the EIR. This has been marked within the attachment where it applies. 

The information is covered by the common law obligation of confidentiality, the information is not trivial in nature, nor is it in the public domain and relates to commercially sensitive figures which form part of a negotiated bid process which has not yet concluded. Disclosure of the information would inevitably harm the confidential nature of it and therefore the exemption at Regulation 12(5)(e) is engaged in respect of disclosure of the redacted information. 

Regulation 12(5)(e) is as qualified exemption from our duty to disclose information under the EIR, and consideration must be given as to whether the public interest favouring disclosure of the information covered by this exemption outweighs the public interest considerations favouring maintaining the exemption and withholding the information. 

The GLA acknowledges that there is a public interest in the delivery of the Affordable Homes Programme. However, it is not in the public interest to release information which would be likely to prejudice the position of our partners in future negotiations and any procurement exercises. We therefore find that the public interest is balanced in favour of non-disclosure because of the harm its release would cause.

Your new EIR request (no. 2)

Please provide copies of all correspondence between GLA Housing and Land and LB Brent between 1 November 2022 and the current date concerning all housing projects, other than Kilburn Square, with confirmed or indicative GLA grant funding from either programme 2016-23 or 2021-26; including, but not limited to, Windmill Court and St Raphael’s estate.

Our response

Your request falls under the exception to disclose because it is considered to be ‘manifestly unreasonable’ under regulation 12(4)(b) of the Environmental Information Regulation (EIR). This provision allows public authorities to refuse requests which are obviously or clearly unreasonable or when the estimated cost of compliance is too great. 

In reaching this decision we have considered the views of the Upper (Information Rights) Tribunal in ‘Craven v IC & DECCC [2012] UKUT442 (AAC)’ in respect of the EIR exception under regulation 12(4)(b), the formal guidance issued by the Information Commissioner’s Office, along with Decision Notices regarding this EIR exception, such as FS50585926, amongst others, which all acknowledge that public authorities may use the fees regulations as the basis of considering the cost and time of complying with a request. 

Our searches of two GLA officer accounts have revealed that the GLA holds three hundred hundred items of correspondence potentially within the scope of your request, many of which also include attachments. In this instance, we have decided this request falls within the parameters of regulation 12(4)(b) and is manifestly unreasonable because of the considerable amount of time that would be required to collate and review the information. The nature of the requested information necessitates it be reviewed initially by two members of staff within our Housing and Land team who are experienced with the background of the Housing projects. This would place an unacceptable burden on their limited resources and constitute an unreasonable distraction from normal work.

A public authority can only withhold information if the public interest in maintaining the exception outweighs the public interest in disclosing the information. We are mindful of the general public interest in transparency and accountability, and of the presumption in favour of disclosure and to read exceptions restrictively. 

A sizeable proportion of the information we have identified would likely engage one or more of the disclosure-exception (exemption) provisions of the EIR. We would consequentially have to spend a considerable amount of time reviewing each piece of information individually and consulting with a number of third parties to consider whether or not it would be exempt from disclosure. The time and resources required to review this information would be unreasonable given the potential for it to remain exempt information. 

Similarly, a large volume of information caught by this request is administrative in nature. Where this information might be suitable for release under the EIR, the time and resources required to review this information (given it cannot be easily separated from the exempt information) would also be unreasonable given the limited benefit to the public debate on this matter. 

On balance therefore, it is our view that the public interest in maintaining the exception in regulation 12(4)(b) outweighs the public interest in disclosure. In making this decision, we have taken account of the fact that we have been able to provide you with information which has been more focused on a particular project within the programme.

I understand this response may cause frustration but it aims to ensure, as recognised in the guidance, that our responsibilities under the Act do not distract from our other statutory functions as a public authority. 

When refusing a request for environmental information under regulation 12(4)(b) on the grounds of cost, public authorities are required to provide advice and assistance and explaining how a request may be refined. 

You may wish to consider reviewing the scope of your request by specifying the projects you are interested in.

If you have any further questions relating to this matter, please contact us, quoting reference MGLA070223-9407.