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From: Hillingdon-Watch [mailto:petersilverman@hillingdon-watch.org.uk]
Sent: 25 March 2009 18:57
To: Hugh Dunnachie - Chief Executive, LB Hillingdon
Cc: Cllr Philip Corthorne; Cllr. Mike Cox ( LHB Leader Lib Dems); Nick Hurd (MP For Ruilsip Northwood); John McDonnell (MP Hayes& Harlington); Raj Alagh (Borough Solicitor - LB Hillingdon); Mike Usher (LBH Dep. Leader Lab Gp); Jean Palmer - LBH Planning Director

Subject: Unlawful Exclusion from Council Committee Meeting


Mr Dunnachie,

Please refer to my e-mail to you of 27th January. 

It referred to the report submitted to the North Planning Committee for their meeting on 9th Dec 2008  recommending a notice be served on the owners of 45 Kingsend.  

I was concerned that the Council had decided that it contained exempt information and they would exclude the public from both seeing it and attending the relevant section of the meeting. 

I was subsequently contacted by officers in your Legal and Planning Departments about the issues I had raised.   As a result of the further information provided I have now updated the relevant page on my web site.  Please go to  http://www.hillingdon-watch.org.uk/html/eyesores.html 

As you will see I have listed 4  reasons why I think  this exclusion was unlawful. 

What actions will the Council now take to:

a.Review its processes to ensure that future exclusions are made lawfully?
b.Review the validity of past committee decisions where similar unlawful exclusions were instituted?

Also, will the Council in future seek to follow the Government’s  Best Practice Guidelines and issue warning letters before considering the use of S215 (Town & Country Planning Act) notices?

I  look forward to hearing from you.

Peter Silverman
www.hillingdon-watch.org.uk   
20 Kingsend, Ruislip, HA4 7DA
01895 625770

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From: Hugh Dunnachie [mailto:HDunnachie@Hillingdon.Gov.UK]
Sent: 09 April 2009 16:59
To: Hillingdon-Watch
Subject: Re: Unlawful Exclusion from Council Committee Meeting

Dear Mr Silverman
 
Thank you for your e-mails dated 25th March and 8th April 2009.
 
I apologise for the delay in replying to you but I had asked both the Director of Planning and Community Services and the Borough Solicitor to look into this issues which you had raised in your e-mail of 25th March.
 
I have been advised that the Council's Planning Committee was within its rights to treat the report on 45 Kingsend as a private item at its 9th December 2008 meeting by virtue of paragraph 6 of Schedule 12A to the Local Government Act 1972.
 
If this report had been made public, it would have revealed the fact that the Council was intending to serve a statutory notice and in all such cases, the Council has to carefully balance the public interest in deciding whether or not to put this type of information into the public domain.  
 
It was determined that in the case of 45 Kingsend, the public interest in treating the report as a private item outweighed the public interest in publicly disclosing it and I have been advised that the Council adopted the correct approach.
 
Therefore, in all the circumstances, I am satisfied that no person was unlawfully excluded from the 9th December Planning Committee meeting and that the Council has at all times acted in accordance with the provisions of the Local Government Act 1972.
 
Yours sincerely
 
Hugh Dunnachie

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From: Hillingdon-Watch [mailto:petersilverman@hillingdon-watch.org.uk]
Sent: 14 April 2009 11:24
To: 'Hugh Dunnachie'
Cc: Nick Hurd (MP For Ruilsip Northwood); John McDonnell (MP Hayes& Harlington); John Randall (MP Uxbridge); Cllr. Mike Cox ( LHB Leader Lib Dems); Anthony Way (LBH Labour Group Leader); Ray Puddifoot (Leader LBH); Lloyd White (LBH Head Of Democratic Services)
Subject: Unlawful Exclusion from Council Committee Meeting


Dear Mr Dunnachie,
Thank you for your e-mail of 9th April. 

I have attached a copy of the page from my web site which I drew your attention to in my e-mail of 25th March to ensure there is a complete audit trail for this correspondence.  I now extract from this the four reasons why I felt the exclusion was unlawful:

1. Decisions to treat information as exempt are qualified by a public interest test.  The legislation says that information is only exempt if and so long as ... the public interest in maintaining the exemption outweighs the public interest in disclosing it. See The Local Government (Access to Information) (Variation) Order 2006 (No 88) Schedule 12A  (10).  It’s very difficult to see how the public interest was  served by this decision.

Article 13.02 of the LBH Constitution (page 66) says "All decisions of the Council are made in accordance with the following principles: .. (b) a presumption in favour of openness and (g) making clear what options were considered and rejected in the making of a decision and giving the reasons for that."   Officers did not give their reasons to the Committee for deciding that  the public interest in maintaining the exemption outweighed the public interest in disclosing the information.

2. The proposal to serve a S215 notice on the owner had been made public in the agenda.  The report could not therefore have contained any information which would have revealed what the Council proposed. It had already been revealed in the agenda.

3. The Local Government (Access to Information Act) 100A (4)  states that  “A principal council may by resolution exclude the public from a meeting during an item of business whenever it is likely, in view of the nature of the business to be transacted or the nature of the proceedings, that if members of the public were present during that item there would be disclosure to them of exempt information...”.  No such resolution was made.

4. Part Four B 12(1)  on page 112 of the LBH Constitution says "Reports which in the opinion of the Head Of Democratic Services contain exempt in formation must be marked "Not For Publication" ..... Members shall, by resolution, confirm or vary this designation."  The decision to treat the information as exempt was not made by the Head of Democratic Services but by officers from Democratic Services and Planning.  The designation was not, as stated above, confirmed by resolution.
I contend that you have not adequately addressed any of these points and that they all remain valid. 

Let us take point 3 for example.  Your reply makes no attempt to explain how the exclusion could have been lawful when no resolution was passed by the committee to exclude the public as required by law

I would urge you to look at this whole issue afresh and not rely solely on advice from officers whose departments were responsible for these serious errors.

I would appreciate it if you could let me know within the next week if you will be taking any further action to deal with my concerns.

I look forward to hearing from you.

Peter Silverman
www.hillingdon-watch.org.uk   
20 Kingsend, Ruislip, HA4 7DA
01895 625770