Planning Applications: Publication of Information Online

Information about the publication of Ministerial Decisions

A formal published “Ministerial Decision” is required as a record of the decision of a Minister (or an Assistant Minister where they have delegated authority) as they exercise their responsibilities and powers.

Ministers are elected by the States Assembly and have legal responsibilities and powers as “corporation sole” under the States of Jersey Law 2005 by virtue of their office and in their areas of responsibility, including entering into agreements, and under any legislation conferring on them powers.

An accurate record of “Ministerial Decisions” is vital to effective governance, including:

demonstrating that good governance, and clear lines of accountability and authority, are in place around decisions-making – including the reasons and basis on which a decision is made, and the action required to implement a decision
providing a record of decisions and actions that will be available for examination by States Members, and Panels and Committees of the States Assembly; the public, organisations, and the media; and as a historical record and point of reference for the conduct of public affairs

Ministers are individually accountable to the States Assembly, including for the actions of the departments and agencies which discharge their responsibilities.

The Freedom of Information Law (Jersey) Law 2011 is used as a guide when determining what information is be published. While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.

A decision made 27 April 2012:

Decision Reference: MD-PE- 2012-0029
Decision Summary Title:	Making information available online in connection with the consideration and viewing of applications for planning permission		Date of Decision Summary:	18 April 2012
Decision Summary Author:	Written		Decision Summary: Public or Exempt?	Public
Type of Report: Oral or Written?			Person Giving Oral Report:
Written Report Title:	Making information available online in connection with the consideration and viewing of applications for planning permission		Date of Written Report:
Written Report Author:	Planning Performance Manager		Written Report : Public or Exempt?	Report and Appendices I & II are public documents Appendix III of the report is exempt form disclosure under the “Code of Practice on Access to Information…” by virtue of Part 3.2.1 (v) of the Code
Subject: Making information available online in connection with the consideration and viewing of applications for planning permission
Decision(s): Publication to the internet applications for planning permission and associated documentation including representations, commence from 15 May 2012. The Data Protection, Copyright and Publication of Planning Applications to the Internet Policy document is adopted. The copying of information from the internet of anything forming part of an application for planning permission by a person for consideration and comment is authorised. –
Reason(s) for Decision: The Minister for Planning and Environment recognises that part of providing a credible and accountable process for dealing with applications for planning permission involves making available as much information as possible. Subject to the safeguards to be put in place to control the extent of information published online authorising publication will enable more engagement, accountability and efficiency of service
Resource Implications: Costs for the provision of this service have been included within an upgrade of the IT structures of the Planning and Building Service which in total was £170,000. These were met from a payment from the Treasury of previously unspent funds by the Department along with a contribution from the Department’s Strategic Reserve
Action required: Commence publishing details of applications for planning permission on the internet from 24 April 2012
Signature: Deputy R Duhamel		Position:
Date Signed:		Date of Decision (If different from Date Signed):

Planning Applications: Publication of Information Online

MD-PE-2012-0029

REPORT

Minister for Planning & Environment

Making information available online in connection with the consideration and viewing of applications for planning permission

April 2012

PLEASE NOTE THAT APPENDIX III OF THIS REPORT IS EXEMPT FROM DISCLOSURE UNDER THE “CODE OF PRACTICE ON ACCESS TO INFORMATION HELD BY THE STATES, COMMITTEES OF THE STATES AND DEPARTMENTS OF THE STATES” BY VIRTUE OF PART 3.2.1 (V) OF THE CODE IN THAT IT WOULD INFRINGE LEGAL PROFESSIONAL PRIVILEGE OR LEAD TO THE DISCLOSURE OF LEGAL ADVICE TO AN AUTHORITY

1 INTRODUCTION

The Minister for Planning and Environment recognises that part of providing a credible and accountable process for dealing with applications for planning permission involves making available as much information as possible. To this end applications for planning permission received from 15 May 2012 will be available to view online through the gov.je website.

2 CONSIDERATIONS

Planning and Building (Jersey) Law 2002

The Minister for Planning and Environment has a statutory duty to make available details relating to planning applications as a public register1. In addition the Planning system is a matter of the public interest and making information about planning applications readily available will encourage participation and transparency in the consideration of those applications and the planning process.

The Planning and Building (Jersey) Law 2002 requires that applications for planning permission are publicized so as to invite comment on the application2. The Law also requires, in particular circumstances, the Department to consult with other statutory bodies and this is augmented by non-statutory requests for comments from other relevant bodies. Currently applications for planning permission are available for inspection in paper format by anyone interested at the Planning and Building Services offices at South Hill and in respective Parish Halls.

1 Article 29 Planning and Building (Jersey) Law 2002

2 Article 11 Planning and Building (Jersey) Law 2002

If an application receives comments from either a consultee or any other interested party the comments are copied to the applicant so that they can consider them and make comments or amendments as they see fit. Applications may be re-publicized following the submission of amendments if appropriate.

In considering any application for planning permission the Minister – or anyone acting under delegated powers on behalf on the Minister - is required by the Law to take into account all the material considerations relating to the proposal. Material considerations will include the proposal to which any application for planning permission relates, relevant Island Plan policies, consultation responses from bodies whose comments have been requested and any comments received from anybody else who has made representation. The weight attached to each of these material considerations is the balancing judgement that has to be made in determining applications for planning permission.

Following determination of an application by the decision and relevant reports, plans and information associated with the application are available for inspection at the Department’s South Hill offices. If an application was determined more that a few months previously the file has to be requested from an off-site archive store and viewed at a later date following retrieval. Whilst this period is usually very short – one or two working days – there is no ‘drop-in’ service where application details can be accessed in a convenient manner.

A transparent and accessible process should make as much relevant information as possible available during consideration of an application and after its determination. The level of readily available information that is required will vary depending on the status of an application. For example, in general terms, all documents should be available whilst an application is under consideration, but following determination and after any relevant appeal period has expired, only the details of the decision itself will be immediately relevant.

Access to Information

Notwithstanding the desirability of an open and transparent process over applications for planning permission there are existing protocols in place for allowing access to information processed and held by the Department of Environment. Chief among them is the “Code of Practice to Information Held by the States, Committees of the States and Departments of the States” (Appendix I) which establishes a presumption of openness in connection with sharing information subject to certain safeguards. This Code remains in force but is likely to be superseded by a Freedom of Information (FoI) Law which was approved by the States Assembly in May 2011 and is awaiting enactment. The context of both the Code of Practice and the forthcoming FoI Law recognise the importance of openness in decision making but both attach certain exemptions to making information available. Applications for planning permission should reflect the guidance in the Code of Practice and as such information that is exempt from disclosure as indicated at Part 3.2 of the Code of Practice will by and large be appropriate to follow.

For clarity given the need for transparency in the determination of planning applications the criteria in the Code of Practice at Part 3.2(b) - which indicates that information submitted in confidence would, by agreement, be treated as confidential – is highly unlikely to have a place in relation to an application for planning permission.

Data Protection

As well as allowing fair access to information there is the important matter of Data Protection to consider in publishing information online. It is a legal obligation to make applications for planning permission available and this includes allowing them to be viewed on the internet. However the Minister has to abide by the provisions of the Data Protection (Jersey) Law 2005 which seeks to strike a balance between the rights of individuals and the sometimes competing interests of those with legitimate reasons for using personal information. The Data Protection (Jersey) Law 2005 gives individuals certain rights regarding information held about them. It places obligations on the Minister whilst giving rights to those who are the subject of that data.

In this context the Minister form Planning and Environment has adopted a policy and procedure to ensure that any personal data received or held in connection with applications for planning permission will be

1. Fairly and lawfully processed

2. Processed for limited purposes

3. Adequate, relevant and not excessive

4. Accurate and up to date

5. Not kept longer than necessary

6. Processed in accordance with the individual’s rights

7. Secure

8. Not transferred to countries outside European Economic area unless country has adequate protection for the individual

The full policy and commitments that the Minister has adopted is attached to this report (Appendix II). In summary the Department will make clear in the first instance that any information submitted will be likely to be published. Further it will seek to ensure that any information submitted in connection with an application and then published online will be suitably assessed and if necessary redacted prior to publication to ensure only information relevant to the application for planning permission is published. Information will be made available appropriately and following determination of an application all that will remain published online will be information that relates directly to the decision taken. All other information may well be made available on request but as a matter of course only information indicating what decision has been will remain published online.

The Planning and Building (Jersey) Law states that the copyright in anything forming part of an application for planning permission is not infringed if the Minister provides a person with a copy of it for consideration or comment. Anyone accessing information online will be made aware that they do so only in the context of their consideration or comment.

CONCLUSION

By making available information related to applications for planning permission the process will become more accessible, more transparent and more accountable. Subject to appropriate safeguards the availability of what will become a growing body of information will serve everyone with an interest in the planning process in a much more efficient, convenient and appropriate manner. The following recommendations reflect the process of publishing information to the internet

RECOMMENDATIONS

It is recommended that publication to the internet of applications for planning permission and associated documentation including representations is endorsed by the Minister.

It is recommended that the Data Protection, Copyright and Publication of Planning Applications to the Internet Policy document is adopted.

It is recommended that the Minister authorises the copying of information forming part of an application for planning permission by a person for consideration and comment.
MINISTERIAL DECISION P&E-2012-0029

APPENDIX I

A CODE OF PRACTICE ON PUBLIC ACCESS TO OFFICIAL INFORMATION

(Adopted by Act of the States dated 20th July 1999

as amended by Act of the States dated 8th June 2004)

PART I: Description

1. Purpose

1.1 The purpose of this Code is to establish a minimum standard of openness and accountability by the States of Jersey, its Committees and departments, through –

(a) increasing public access to information;

(b) supplying the reasons for administrative decisions to those affected, except where there is statutory authority to the contrary;

(c) giving individuals the right of access to personal information held about them and to require the correction of inaccurate or misleading information,

while, at the same time –

(i) safeguarding an individual’s right to privacy; and

(ii) safeguarding the confidentiality of information classified as exempt under the Code.

1.2 Interpretation and scope

1.2.1 For the purposes of this Code –

(a) “authority” means the States of Jersey, Committees of the States [1], their sub-committees, and their departments;

(b) “information” means any information or official record held by an authority;

1.2.2 In the application of this Code –

(a) there shall be a presumption of openness;

(b) information shall remain confidential if it is classified as exempt in Part III of this Code;

1.2.3 Nothing contained in this Code shall affect statutory provisions, or the provisions of customary law with respect to confidence.

1.2.4 This Code applies to information created after the date on which the Code is brought into operation and, in the case of personal information, to information created before that date.

PART II: Operation

2.1 Obligations of an authority

2.1.1 Subject to the exemptions listed in paragraph 3, an authority shall –

(a) keep a general record of all information that it holds;

(b) take all reasonable steps to assist applicants in making applications for information;

(c) acknowledge the receipt of an application for information and endeavour to supply the information requested (unless exempt) within 21 days;

(d) take all reasonable steps to provide requested information that they hold;

(e) notify an applicant if the information requested is not known to the authority or, if the information requested is held by another authority, refer the applicant to that other authority;

(f) make available information free of charge except in the case of a request that is complex, or would require extensive searches of records, when a charge reflecting the reasonable costs of providing the information may be made;

(g) if it refuses to disclose requested information, inform the applicant of its reasons for doing so;

(h) the authority shall correct any personal information held about an individual that is shown to be incomplete, inaccurate or misleading, except that expressions of opinion given conscientiously and without malice will be unaffected;

(i) inform applicants of their rights under this Code;

(j) not deny the existence of information which is not classified as exempt which it knows to exist;

(k) undertake the drafting of documents so as to allow maximum disclosure;

(l) undertake the drafting of Committee and sub-committee agendas, agenda support papers and minutes so as to allow maximum disclosure;

2.1.2 An authority shall –

(a) forward to the States Greffe the names of strategic and/or policy reports prepared by the authority after the date of adoption of this amendment, to be added to a central list to be called the Information Asset Register (‘the Register’);

(b) notwithstanding paragraph 2.1.2 (a), the name of any report deemed to be of public interest shall be included on the Register;

(c) where the cost of third party reports or consultancy documents, which have been prepared for the authority or which are under preparation, exceeds an amount fixed from time to time by the Privileges and Procedures Committee, an authority shall forward to the States Greffe the names of such reports to be added to the Register, together with details of the cost of preparation and details of their status;

(d) subject to the exemptions of the Code, make available to the public all unpublished third party reports or consultancy documents after a period of five years.”

2.2 Responsibilities of an applicant

2.2.1 The applicant shall –

(a) apply in writing to the relevant authority having identified himself to the authority’s satisfaction;

(b) identify with reasonable clarity the information that he requires;

2.3 Appeals

2.3.1 If an applicant is aggrieved by an authority’s decision to refuse to disclose requested information or to correct personal information in a record, he will have the right of appeal set out in Part IV of this Code.

PART III: Access and exemptions

3.1 Access

3.1.1 Subject to paragraphs 1.2.3 and 2.1(k) and (l) and the exemptions described in paragraph 3.2 –

(a) an authority shall grant access to all information in its possession, and Committees of the States, and their sub-committees, shall make available before each meeting their agendas, and supplementary agendas, and grant access to all supporting papers, ensuring as far as possible that agenda support papers are prepared in a form which excludes exempt information, and shall make available the minutes of their meetings;

(b) an authority shall grant –

(i) applicants over the age of 18 access to personal information held about them; and

(ii) parents or guardians access to personal information held about any of their children under the age of 18.

3.2 Exemptions

3.2.1 Information shall be exempt from disclosure, if –

(a) such disclosure would, or might be liable to –

(i) constitute an unwarranted invasion of the privacy of an individual;

(ii) prejudice the administration of justice, including fair trial, and the enforcement or proper administration of the law;

(iii) prejudice legal proceedings or the proceedings of any tribunal, public enquiry, Board of Administrative Appeal or other formal investigation;

(iv) prejudice the duty of care owed by the Education Committee to a person who is in full-time education;

(v) infringe legal professional privilege or lead to the disclosure of legal advice to an authority, or infringe medical confidentiality;

(vi) prejudice the prevention, investigation or detection of crime, the apprehension or prosecution of offenders, or the security of any property;

(vii) harm the conduct of national or international affairs or the Island’s relations with other jurisdictions;

(viii) prejudice the defence of the Island or any of the other British Islands or the capability, effectiveness or security of the armed forces of the Crown or any forces co-operating with those forces;

(ix) cause damage to the economic interests of the Island;

(x) prejudice the financial interests of an authority by giving an unreasonable advantage to a third party in relation to a contract or commercial transaction which the third party is seeking to enter into with the authority;

(xi) prejudice the competitive position of a third party, if and so long as its disclosure would, by revealing commercial information supplied by a third party, be likely to cause significant damage to the lawful commercial or professional activities of the third party;

(xii) prejudice the competitive position of an authority;

(xiii) prejudice employer/employee relationships or the effective conduct of personnel management;

(xiv) constitute a premature release of a draft policy which is in the course of development;

(xv) cause harm to the physical or mental health, or emotional condition, of the applicant whose information is held for the purposes of health or social care, including child care;

(xvi) prejudice the provision of health care or carrying out of social work, including child care, by disclosing the identity of a person (other than a health or social services professional) who has not consented to such disclosure;

(xvii) prejudice the proper supervision or regulation of financial services;

(xviii) prejudice the consideration of any matter relative to immigration, nationality, consular or entry clearance cases;

(b) the information concerned was given to the authority concerned in confidence on the understanding that it would be treated by it as confidential, unless the provider of the information agrees to its disclosure; or

PART IV: Appeal procedure

4.1 An applicant who is aggrieved by a decision by an officer of a States department under this Code may in the first instance appeal in writing to the President of the Committee [2] concerned.

4.2 An applicant who is aggrieved by the decision of an authority under this Code, or by the President of a Committee under paragraph 4.1, may apply for his complaint [3] to be reviewed under the Administrative Decisions (Review) (Jersey) Law 1982, as amended.

MINISTERIAL DECISION P&E-2012-0029

APPENDIX II

DATA PROTECTION, COPYRIGHT AND PUBLICATION OF PLANNING APPLCATIONS TO THE INTERNET POLICY

APRIL 2012

The Minister for Planning and Environment has a statutory duty to make available certain details relating to planning applications as a public register1 and regulations also allow this information to be made available on the internet 2.

Planning is a matter of the public interest. Making information about planning applications readily available will encourage participation and transparency in the consideration of planning applications and the planning process. To this end the Minister will publish information to the internet in connection with planning applications. The content and ammount of information available on the internet will vary according to the stage an application has reached – whether it is pending determination or has been determined – so as to accord with the principles of data protection indicated below.

In considering any application for planning permission the Minister is required to take into account all the material considerations relating to the proposal. Indeed the Minister has a statutory duty to take into account particular information and so as to provide a transparent, objective and reasonable process there should be a pressumption that all the material submitted in connection with the consideration of an application will be published to the internet. However every piece of data needs to be considered on its own merits and the inclusion of safeguards in the process - indicated below - will ensure that such publication is appropriate and proportionate.

In this document the Minister has set out undertakings in respect of responsibilities under the Data Protection (Jersey) Law 2005 in relation to the publication of information in respect of applications for planning permission. Additionally the Minister for Planning and Environment has set out implications over copyright that may attach to the publication of documents on the internet.

1 Article 29 Planning and Building (Jersey) Law 2002

2 Article 15 Electronic Communications (Jersey) Law 2000

DATA PROTECTION

The purpose of this document is to enable the Minister for Planning and Environment and the Department of the Environment Planning and Building Services section to:

comply with the law in respect of the data it holds about individuals;
follow good practice;
protect States of Jersey Department of the Environment Planning and Building Services section staff and other individuals
protect the organisation from the consequences of a breach of its responsibilities

in relation to the publication of information to the internet regarding applications for planning permission

The Data Protection (Jersey) Law 2005 seeks to strike a balance between the rights of individuals and the sometimes competing interests of those with legitimate reasons for using personal information. The Data Protection (Jersey) Law 2005 gives individuals certain rights regarding information held about them. It places obligations on those who process information (data controllers) while giving rights to those who are the subject of that data (data subjects). Personal information covers both facts and opinions about the individual. Plans and drawings in themselves are not personal data.

The States of Jersey Department of the Environment Planning and Building Services section commits to ensuring that any personal data received or held on its Registers will be

1. Fairly and lawfully processed

2. Processed for limited purposes

3. Adequate, relevant and not excessive

4. Accurate and up to date

5. Not kept longer than necessary

6. Processed in accordance with the individual’s rights

7. Secure

8. Not transferred to countries outside European Economic area unless country has adequate protection for the individual

The following commitments reflect these principles;

Fairly and lawfully processed

Fairness

The Department will clearly advise people what will happen to their personal data. In the case of personal data submitted in connection with the Register of Planning Applications the Department will make it clear that relevant information will be published on the internet.

Lawfulness

Information that is published on the Internet will be lawfully required as part of the Register of Planning Applications. Where technically possible and administratively feasible administrative information will be withheld from internet publication. If it appears that information may be sensitive3 the Department will discuss the issue with the individual concerned prior to publication to the internet.

Processed for limited purposes

The Department will not use personal data collected and collated or received in connection with the processing of planning applications for any other purpose other than the consideration of those applications unless the use is justified.

Adequate, relevant and not excessive

Only data that is adequate and relevant submitted in connection with the processing of a planning application will be published on the internet.

Accurate and up to date

Personal data will be accurate and up to date.

Not kept longer than necessary

Once the need for the publication of data to the internet has passed that personal data shall be removed.

Processed in accordance with the individual’s rights

The department is aware that individuals have rights under the Data Protection Law (Jersey) 2005 and will act accordingly when individuals seek to assert those rights.

Secure

The Department will seek to ensure that personal data published on the internet cannot be altered by others

Not transferred to countries outside European Economic area unless country has adequate protection for the individual

There are no anticipated circumstances where data will be transferred outside the European Economic Area. However this principle will be noted and adhered to should any such situation arise.

3Sensitive personal data is considered to be that relating to racial or ethnic origins, political opinions, religious belief, health, sexual life, and the commission of offences or criminal proceedings

The Department has put in place processes and procedures that will ensure compliance with the above principles. These will include

Identifying the types of documents that are likely to be made available on the internet at different stages of the cycle of processing a planning application or otherwise maintaining the Register of Planning Applications (See Table 1)
Clearly informing users of the planning service that the information they provide will be published on the internet.
As far as applicants for planning permission or their agents are concerned there will be an opportunity for indicating documents containing personal information they do not wish to be made public. The Department will then consider all such requests on their merits and in the context of the statutory obligations to make information available on the Register of Planning Applications.
Whilst the publication of details of applicants and individuals making representations in connection with an undetermined planning application is appropriate in terms of maintaining a transparent and open process it is likely to be unnecessary to disclose telephone numbers, email addresses and signatures or other similar information. Every effort will be made by the imposition of appropriate and proportionate processes to ensure this information is not published to the internet.
Similar processes will also be used to assess whether any data submitted is of a sensitive nature and any such information will be withheld from publication on the internet until such time that the issue can be discussed with that person
An assessment as to whether data submitted is relevant.
If an individual wishes to comment on an application but indicates that they wish to do so anonymously or in confidence they will be informed that the comment cannot be taken into consideration in assessing a planning application. That person will then be given the opportunity to withdraw their comments or amend them appropriately
Not allowing the use of any data for any purpose other than what it was submitted for
Following the processing of an application for planning permission to completion – which will include the period within which either first or third party appeals may be submitted - unnecessary data will be removed from the internet (see Table 1)
Responding actively to any requests in connection with data under the relevant Law and Codes of Practice
Putting in place proportionate and relevant safeguards to stop alteration of data or misrepresentation of data.

If any circumstances arise where it appears that any of the eigth data protection principles indicated above are being not being complied with then action will be taken to address those circumstance. This could involve action on a one-off basis or may involve the adaptation of existing practices or introduction of additional practices. If this occurs this document will be updated accordingly.

The Department may publish to the internet the decisions of applications for Building Bye-Law applications. Any non-relevant data included in the Register will be removed prior to publication.

The Minister for Planning and Environment is required by statute to maintain a Register of Planning Applications containing details of each application for planning permission the Minister receives and the manner in which it was dealt with. That Register must be available for public inspection. The copyright of anything forming part of a planning application is not infringed if the Minister makes available copies of anything within that application for consideration and comment5

Anyone wishing to view the details of any application for planning permission will be informed that they may only download and/or print material in connection with consideration and comment and further copies of any of the material can only be made with the prior permission of the copyright owner.

COMPLAINTS

If anyone has any concerns over the use of their personal data they should contact

The Data Controller

The Department of the Environment

South Hill

St Helier

Jersey

JE2 4US

5 Article 11(6) Planning and Building (Jersey) Law 2002

TABLE 1

ACCESSIBILITY ON THE INTERNET TO DOCUMENTS IN RELATION TO PLANNING APPLICATIONS DURING THE CYCLE OF THE APPLICATION

Document Type	Application Status
Document Type	Current	Determined	Live Appeal
Application Form	YES	NO	YES
Drawing/Plans	YES	YES	YES
Site Plan	YES	YES	YES
Information accompanying the application	YES	NO (unless directly relevant to the decision)	YES
Consultee comments	YES	NO	YES
Site Notice certificate	YES	NO	YES
General comments	YES	NO	YES
Objection representation	YES	NO	YES
Supporting representation	YES	NO	YES
Officer report	YES	YES	YES
Decision Notice	N/A	YES	YES

[1] Under the ministerial system of government, the relevant Minister applies.

[2] Note: Under ministerial government, this would be the relevant Minister.

[3] An application for a complaint to be heard by the States of Jersey Complaints Panel should be submitted to the Greffier of the States, States Greffe, Morier House, Halkett Place, St. Helier, Jersey JE1 1DD