Planning Compliance report for case CMP/2023/00189 (FOI)

​​​Original ​Request 688040843

I request a copy of the Planning Compliance report for case CMP/2023/00189.

Original ​Response

The Information requested has been withheld in accordance with Article 42 (Law Enforcement) of the Freedom of Information (Jersey) Law 2011 as it relates to a Compliance Case.

Article applied

Article 42 - Law enforcement

Information is qualified exempt information if its disclosure would, or would be likely to, prejudice –

(a) the prevention, detection or investigation of crime, whether in Jersey or elsewhere;

Public Interest Test

​Whilst disclosure of the information would support transparency to the general public and provide information regarding the proposed development, 

The disclosure could result in a potential risk of criminal activity occurring and that this potential risk outweighs the public interest in favour of disclosure at this time.​

​Internal Review Request

Planning Compliance Case CMP/2023/00189:  FOI Internal Review request. 

Thank you for the reply of March 2025 (received 18 March) to the above FOI request (16 Feb) and the notification of the decision to decline disclosure of the compliance case (CMP/2023/00189) report.  The decision's justification is given thus: 

Whilst disclosure of the information would support transparency to the general public and provide information regarding the proposed development,

The disclosure could result in a potential risk of criminal activity occurring and that this potential risk outweighs the public interest in favour of disclosure at this time.  

I understand that prejudicing the prevention, detection or investigation of crime is an offence and so the potential for released information to result in criminal activity is relevant to a risk assessment for FOI requests and could be a justified reason for disclosure.  I do not understand how, in the CMP/2023/00189 case, the release of the completed  report could result in a potential risk of criminal activity occurring, as is implied, in the future.  The FOI Internal Review Procedure states (para 9) that if I believe the reason given to deny access to the information was incorrect, I should explain this in the request for an internal review. 

Judging the balance between the report content and the potential risk of disclosure resulting in criminal activity is pivotal to assessing the correctness of the decision on the FOI Request.  Differing categories of criminal activity have differing potential risk. To correctly judge the balance requires persons with knowledge of both the report's content and knowledge of, at least the category of, if not the specific, criminal activity that might generate the potential risk. 

The cryptic justification for declining the FOI request (above), means that I do not have the required knowledge of the report content nor the criminal activity that carries the potential risk.  Thus I consider myself unqualified to reliably judge whether the reason given to deny access is correct, or not.  I need to rely on the judgement of others.

​From my knowledge of the case as reported to Building Control and my reading of the FOI request response, my assessment is that the decision to deny access to the information is questionable.  Accordingly, I request an internal review of the decision on the FOI request denying access to the information: this review to be conducted by persons having the required knowledge of the report's content, and the risk profile of the identified criminal activity, as specified in the FOI Internal Review Procedure.  

I offer the following notes to help the internal reviewer(s) understand why I am not convinced that the March 2025 explanation provides sufficient information to justify the FOI decision to decline disclosure of the Compliance Case CMP/2023/00189 report. 

1.  In Aug 2023 I lodged a complaint to Building Control to formalise local residents' concern that the Flag House RP/2022/0054 development was exceeding its approved plans.  The question to be answered by the compliance case was binary - whether or not the development was built according to an approved planning application - and relied on extant evidence. The apparent deviation from the plan related to specific structures in a specified area of the claimed application site.  I quote from my email to Building Control  of 17 August: 

"We believe that the work building the north and south boundary walls, as identifiable on the latest [public domain planning register] plans has/is been/being extended further towards the East (i.e. up to the sea wall) than permitted. This extension appears to constitute an encroachment onto public land namely the 'reclaimed foreshore' lying behind the seawall.

The extension of these walls was reported to the Minister for Infrastructure on 10 July 2023 […….] We understood from the Minister's office response that this complaint was being followed up by his officers.  The walls were further extended by 8 Aug as far as the seawall, and today are being faced with stone slabs."

2.  The development's approved plans are in the public domain on the Planning Register.  The part of the built development relevant to the compliance case (i.e. the encroached area of the reclaimed foreshore bounding the sea wall) is easily and adequately viewed from the beach (within 10 m), or from the top of the seawall (within 3 m).  Ironically, and relevant to transparency concerns, this area of the development is owned by the public of Jersey (i.e. is public land).  Inherently the development plans and their implementation, specifically on the reclaimed foreshore are a 'public domain' issue. 

Thus all the evidence required to make and explain the compliance case decision should already be in the public domain.  If necessary, it seems plausible any information required in the report but that infringed legal (personal data or security) concerns could be adequately redacted, with no loss of integrity of the report's logic and finding.  Thus I conclude that 'the potential risk of criminal activity' from disclosure is unlikely to be related to such issues.

3.  The compliance case's decision reported by Jersey Property Holdings that the development's build was compliant with approved plans inexplicably contradicts local residents' visual assessment that it is not compliant: an assessment based on the discrepancy between the approved plans and the built development structures in respect of the foreshore encroachment.  The FOI request was made in order to enable we residents to understand the logic and decision of the compliance case, and if necessary challenge the compliance case decision. 

The procedure for a FOI request does not require submission of evidence with the request and I did not include any.   However, I suggest that an adequate understanding of the context and motivation, which is common to both the FOI request and this internal review of the FOI decision request, is relevant knowledge for the internal review.  Accordingly I attach documentation of correspondence from and to the Director Jersey Property Holdings that explains this context and motivation. 

4. The FOI response acknowledges the transparency case for disclosure of information in the public interest but appears to have misunderstood the scope of  that public interest.  The subject of public interest is not a 'proposed development', it is a 'completed development'; nor is it solely the 'completed development'.  The primary subject of public interest is in the appropriate application of planning process and of the government Foreshore Encroachment Policy, as the attached correspondence document demonstrates.  This public policy and the planning application process has generic, and greater, public interest value than an individual development. ​

FOI decision-making correctly centres on the counter balance between the 'public interest' and other relevant factors.  In my view the misunderstanding of the subject of the public interest may have resulted in an underestimation of the weighting due for the public interest vs that for the potential risk of criminal activity occurring.  Re-evaluation of the public interest value, and so its due weighting, must surely alter the balance of the FOI decision in favour of disclosure of the information. 

5.  I have struggled to identify criminal activity whose potential risk of occurring would be increased as a result of the information in a compliance case where the evidence needed for the case decision was already in the public domain, appropriately redacted if possible.  However, two options were considered as possibilities. 

*  The potential risk relates to the development's physical security. It is not clear what new knowledge would emerge from the Compliance Case information disclosure that increases that extant risk.  A risk which in this neighbourhood is demonstrably very low. 

*  The potential risk of criminal activity from disclosure of the compliance case report could be due to information inherent to the Compliance Case procedure and process, or due to case conduct.  It has to be assumed that, while this is possible, the risk is minimal.  The Compliance Case procedure and process, and report approval would have been subject to appropriate (high) standards. Had these standards not been met the case would have been aborted or the report would have been withdrawn. 

If further clarification or information is required from me with respect to issues raised in an internal review or to any other FOI issue, please contact me. 

I look forward to notification whether an internal review will proceed and, if it does, its decision.

Internal Review Response​nse

This internal review has been conducted by an official of appropriate seniority who has not been involved in the original decision. As part of their review, they will be expected to understand the reasons behind the original response, impartially determine whether the response should be revised, and how so, considering the request and the information held, any relevant exemptions, or other relevant matters under the Law. 

The Internal Review Panel was asked to review the original response and confirm the following:  

Does the FOI request relate to a body to which the Law applies, or information held by a body covered by the Law? 

If the answer is no, all the other questions are not applicable.    

Further questions if above is a yes:   

i. Was the right information searched for and reviewed? (supply audit if possible) 

ii. Was the information supplied appropriately (supply evidence if possible) 

iii. Was information appropriately withheld in accordance with the articles applied and were the public interest test/ prejudice test properly applied? (supply supporting documents re the test if possible) 

The original response has been reviewed and assessed to identify whether the application of Article 42 (Law Enforcement) of the Freedom of Information (Jersey) Law 2011 had been applied correctly.  

The Panel’s decision is that the application of Article 42 should not have been applied, and the documents should be disclosed.

Personal information within the documents has been redacted in accordance with Article 25 (Personal Information) of the Freedom of Information (Jersey) Law 2011. 

Data has also withheld data under Article 31 (Advice by the Bailiff, Deputy Bailiff or a Law Officer) of the Freedom of Information (Jersey) Law 2011.

Article 31 is a qualified exemptions; therefore, a public interest test has been applied and is shown at the end of this response.

Articles applied

Article 25 - Personal information  

(1) Information is absolutely exempt information if it constitutes personal data of which the applicant is the data subject as defined in the Data Protection (Jersey) Law 2018. 

(2) Information is absolutely exempt information if – 

(a) it constitutes personal data of which the applicant is not the data subject as defined in the Data Protection (Jersey) Law 2018.; and 

(b) its supply to a member of the public would contravene any of the data protection principles, as defined in that Law. 

Article 31 - Advice by the Bailiff, Deputy Bailiff or a Law Officer

Information is qualified exempt information if it is or relates to the provision of advice by the Bailiff, Deputy Bailiff or the Attorney General or the Solicitor General.

Public interest test

Article 31 of the FOI Law recognises the longstanding constitutional Convention that government does not reveal whether Law Officers have or have not advised on a particular issue, or the content of any such advice. 

The underlying purpose of this confidentiality is to protect fully informed decision making by allowing government to seek legal advice in private, without fear of any adverse inferences being drawn from either the content of the advice or the fact that it was sought. It ensures that government is neither discouraged from seeking advice in appropriate cases, nor pressured to seek advice in inappropriate cases. 

The request for information about whether or not advice was sought, or will be sought falls within the Article 31 exemption.

With regard to the public interest arguments, HM Treasury v IC [2009] EWHC 1811 Blake J recognised that when engaged, the Convention will carry significant weight in the public interest test. The Convention has been considered by the Office of the Information Commissioner and was held to be part of Jersey law. 

Whilst it is recognised that the strong public interest in protecting Law Officers’ advice may still be overridden in some cases if there are particularly strong factors in favour of disclosure, conversely, disclosing the advice or whether advice was or will be sought could inhibit the Law Officers from (1) giving frank advice (2) inhibit government bodies in taking advice for fear of its publication; and (3) inhibit the full disclosure to the Law Officers of all material relevant to the advice being sought and therefore real weight ought to be afforded to this aspect of the Law Officers’ Convention.

Disclosing either the legal advice or the fact of whether specific advice was sought to the public is not a greater consideration of public interest that requires disclosure of the advice or confirmation of what advice was given. It does not outweigh the three principles set out above which require the long-standing Law Officer Convention to be maintained.  

Therefore, the balance is in favour of maintaining the exemption and it is not considered the public interest in disclosure outweighs the preservation of the Convention ​on this occasion.

Attachment.pdf​