Update on complaince and legal obligations from CYPES

​​Request ​843934240

This request refers back to FoI item 251618694 of October 2020, and in particular to the second paragraph of the response. 

More than five years having passed, please set out with exactitude the ‘work’ described in that paragraph as having, then, not been begun. 

Please set out precisely how the department is currently meeting the legal obligation upon it referenced in the 2020 response, and at what cost to taxpayers. 

Please provide documentary evidence that the department is actively continuing to meet the legal obligation it entered into.

Response

The previous request (FOI 251618694) was in reference to the Planning Obligation Agreement for the development and construction of. what is now known as the Strive facility. The Service Level Agreements entered into as part of this Planning Obligation, would have ceased at the finalisation of the building of the site. The Government of Jersey and, as such the Scheduled Public Authority (SPA) have no remaining obligations, thus no information is held regarding ongoing legal obligations or cost to taxpayers. Article 3 of the Freedom of Information (Jersey) Law 2011 is applied.

Article 3 - Meaning of “information held by a public authority”

For the purposes of this Law, information is held by a public authority if –

(a) it is held by the authority, otherwise than on behalf of another person; or

(b) it is held by another person on behalf of the authority.​

Internal Review Request

I request, please, a review of the response by the Education ministry to my FoI request 843934240, which I received from you on the 22nd ult.

The response is frankly risible.

The Planning Obligation Agreement (POA) in question was entered into by the Minister for Education (among others) on 8 November 2016. It is duly listed in the government's statutory Register of Planning Obligations under that date (site accessed today). It is also registered in the Royal Court. It remains in force. A POA is a binding legal agreement, enforceable by injunction (Planning Law, Art.25).

A detailed service level agreement was an integral part of the POA 9fourth schedule), which the Minister committed to observing and performing. It concerned, for his part, an agreed level of usage by schools of the (then) proposed new facilities. The 'community usage' exemplified by this formal legal commitment on the part of the Minister was requisite for the new facility's promoters receiving planning permissionand the essence of the Minister;s

commitment was to ensure a level of usage by schools that would enable the terms of the planning permission to be met. That was the deal struck to avert a refusal of permission, as had initially been recommended and it was plausible since schools were, it seems, keen to be able to make use of the new facilities, moreover without charge. The same went for other community groups under the aegis of the Economy Minister, also a party to the POA.

The Department's response betrays apparent ignorance, but I hope not obfuscation, when it says the Service Level Agreements would have ceased at the finalisation of the building of the site. That simply cannot be true; the agreements were part and parcel of the POA and came into practical effect only once the building was built, for they were about the usage of the building - what else? The whole POA remains in force, which is why it is on the statutory register. I would like to know why the Department used the conditional tense in framing its response; as it stands it looks like an admission of not knowing and of not seeming to be anxious or desirous of finding out.

The POA set out a mechanism for termly updates to the Ministry as to the new facility's usage by the 'community' - in this case secondary schools - which is why I asked for documentary evidence in my question, knowing of that arrangement which the owner of th premises was himself bound to produce under the POA.

For it to be said that the Government, and (not only) the department, have no remaining obligations under the POA looks to beggar belief; and if I am wrong in such a supposition I would like to see, please, the documents that the Minister would have had to present to the court unpicking those obligations, and to know why the statutory register has not been amended.

Internal Review Response

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?

ii. Was the information supplied appropriately?

iii. Was information appropriately withheld in accordance with the articles applied and were the public interest test/ prejudice test properly applied?

Following discussion, it was agreed by the Panel that the decision was upheld. However, a revised response is recommended.

Revised Response

The previous request (FOI 251618694) was in reference to the Planning Obligation Agreement for the development and construction of. what is now known as the Strive facility. The Planning Obligation, would have ceased at the finalisation of the building of the site. The Scheduled Public Authority (SPA) have no remaining planning obligations, thus no information is held regarding ongoing legal obligations or cost to taxpayers. Article 3 of the Freedom of Information (Jersey) Law 2011 is applied.

Article 3 - Meaning of “information held by a public authority”

For the purposes of this Law, information is held by a public authority if –

(a) it is held by the authority, otherwise than on behalf of another person; or

(b) it is held by another person on behalf of the authority​.