Perrins v Information Commissioner" [2007] UKIT EA_2006

Appeal Number: EA/2006/0038

Tribunals Service

Information Tribunal Appeal Number: EA/2006/0038

FER0120142

Freedom of Information Act 2000 (FOIA)

Determined on papers Decision Promulgated

Date: 21st December 2006 9th January 2007

BEFORE

INFORMATION TRIBUNAL DEPUTY CHAIRMAN

Chris Ryan

And

LAY MEMBERS

Paul Taylor
Jacqueline Blake

Between

JEFFREY PERRINS
Appellant

And

THE INFORMATION COMMISSIONER

Respondent

And

WOLVERHAMPTON CITY COUNCIL

Additional Party

Decision

The Tribunal Upholds the Decision Notice dated 2 June 2006 and dismisses the
appeal.

Appeal Number: EA/2006/0038

Reasons for Decision

Background

1. The Appellant is the tenant of a house in the West Midlands which, in order to
maintain anonymity, we refer to simply as no. 11. The landlord is
Wolverhampton City Council (“the Council”), which originally owned the
freehold of the whole area of land on which the estate where the house is
situated was erected in the 1970s. At that stage no boundary fences were
erected at the front of the properties but at some stage in the mid 1970s the
Council did erect such fencing. In the case of the boundary between no. 11
and its neighbouring property (no.15) it was aligned in the form of a “dog
leg”. It is not clear why this was done, although it was suggested by the
Council at one stage that this might have been due to the fact that the
properties are located at the end of a cul de sac and that, without a dog leg
alignment, some of the properties might have been “land locked” (which we
assume means that they would not have had access to the public
thoroughfare).

2. The boundary between no.15 and its immediate neighbour, no.17, was also
aligned at the time in the form of a dog leg. At that stage therefore the gardens
of both no. 11 and no. 15 were identical in shape.

3. In about 1998 the tenant of no. 15 bought the freehold of the property from the
Council. At about the same time the boundary fence between that property
and its neighbour at no. 17 was re-aligned to form a continuation of the line of
the internal dividing wall between the two houses. No equivalent alteration
was made to the boundary between no. 11 and no. 15. The garden to no. 15 is
therefore now slightly larger than the garden of no. 11.

4. Although the Appellant’s property was not reduced, the enlargement of no. 15
at the expense of no. 17 appears to have caused him concern and he has been

Appeal Number: EA/2006/0038

in correspondence with the Council on the subject over a number of years. On
15 April 2004 he was given the following explanation of the boundary
alignments in a letter from the Council’s solicitor and Co-ordinating Director:
“The position is that when the Council lays out an estate of Council
housing it determines where the boundaries are between properties.
The law in this regard has not materially changed [since previous
correspondence on the point]. Once the boundaries have been
allocated by the Council they form part of the tenancy agreement
between the Council and individual tenants of properties. When a
council tenant exercises their right to buy a property then their
entitlement is based upon the boundaries of their previous tenancy.
From time to time those boundaries are changed at the point of sale to
suit either the Council or the tenant or their neighbours with the
agreement of the relevant parties depending on the circumstances.
This is what happened in relation to the boundary between number 15
and number 17.”

5. That statement has been supplemented by a Witness Statement filed in this
Appeal by a Mr Shaun Aldis, the Director of Property Services of
Wolverhampton Homes (the body that has taken over from the Council the
management of its housing stock), who states that the reason for the alteration
to the boundary between no. 15 and no. 17 was simply that the tenants of those
properties had agreed to a straight boundary.

The request for information

6. The Appellant was apparently not satisfied with the explanation given in 2004
and it is clear from his correspondence throughout his dealings with the
Council that he considered that the former tenant of no. 15 had received
favourable treatment. As part of his attempt to have the Council’s actions
reviewed he wrote to it on 4 January 2005, a few days after the Freedom of
Information Act 2000 (“the Act”) came into force, setting out the following
request for information under the Act:

Appeal Number: EA/2006/0038

1. When were the front fences erected?

2 What criteria did the council use, at the time the front fences
were erected in 1993, in setting the front boundary lines of 2
and 35 so that their front boundary lines ran in-line with the end
walls of the properties?

3. What criteria did [a particular Council employee] use at that
time in setting the front boundary line between 15 and 11 as a
short dog-leg?

4. What criteria did the Council use in 1998 when setting the
current boundary line between 15 and 17 so that it ran in-line
with the internal wall of the dividing properties?

5. If the criteria used in 3 above, and the criteria used in 4
above is different, when did it change?

6. What department/departments would have been responsible
for making the decision in 4 above?

7. If an open plan estate within the Wolverhampton City limits
were to be constructed under the auspices of Wolverhampton
Homes, “What would be the criteria/ principle/ standard/
condition/ deciding factor whereby the boundary line is
determined between the properties, at the front of the
properties, if no boundary line exists on a map or plan?”

7.1 What Act (or Acts) of Parliament (or law) would be
utilised?

7. The request was refused and the Information Commissioner was asked to
determine whether the Council had handled the Appellant’s request properly.

Appeal Number: EA/2006/0038

The Decision Notice and Appeal to the Information Tribunal

8. The Information Commissioner issued a Decision Notice on 2 June 2006 in
which he concluded that the Council had dealt with the Request properly.
The Appellant appealed to this Tribunal and by order dated 22 August 2006
the Council was joined as an Additional Party. The Appellant had originally
opted for a determination without a hearing and all parties subsequently
agreed that the Appeal should be determined on the basis of written materials
and submissions provided by the parties. However, some time after the Pre
Hearing Review, which the Appellant attended and at which his earlier
preference for a paper determination was reiterated, he submitted an 18 page
written submission in which he said “I submit that this appeal should be
upheld for the reasons given above but disagree with the Commissioner that
the appeal should be dealt with without an oral hearing …”. No application
was made to reverse the earlier direction that the Appeal should be determined
without a hearing, however, and we have therefore proceeded on that basis in
the belief that it would be disproportionate, given the subject matter of the
dispute, to direct the Appeal to be determined at a hearing.

9. We should add that there has not been complete agreement between the parties
as to what documents should be included in the agreed bundle but we have
read all the materials that have been sent to us, whether agreed for inclusion or
not.

10. It is agreed by the parties that the Appellant’s request is covered, not by the
Act, but by the Environmental Information Regulations 2004 (“the
Regulations”). Regulation 5(1) requires a public authority that holds
environmental information to make it available on request. The authority of this
Tribunal to hear the Appeal is to be found in s.57 of the Act, as modified by
reg.18 of the Regulations.

The Questions arising on the Appeal

11. We have broken the various elements of the Appellant’s original request into

Appeal Number: EA/2006/0038

three categories, each of which will be dealt with in turn. The categories are:

a. Request 1 – When were the fences erected?

b. Requests 2 to 5 – What criteria were applied in relation to the fences at
various points in time?

c. Request 6 – Which Council Department is responsible for boundary
alignment?

d. Requests 7 and 7.1 – What criteria and statutory law would be applied
at the time of the request.

When were the fences erected?

12. The Council’s position has been that it has not been able to find any
information on this issue, despite making appropriate enquiries. The
Appellant asserts that the Council does retain relevant information. The
Information Commissioner originally argued that, in the absence of direct
evidence undermining the Council’s denial, he was entitled to accept that
documentation had not been retained due to the passage of time. However, by
the time that he came to lodge his final written submissions on the Appeal, the
Appellant had himself located (in archives maintained by Wolverhampton
Archives and Local Studies) Housing Management Committee papers from
1974 and 1975 indicating that fencing was being considered for the estate in
question at that time. The Commissioner now concedes that these archives are
owned by the Council and that the Council did therefore hold information
which was (in his view, “arguably”) relevant to this question. However, he
points out that the records do not record that the proposal to erect fences was
agreed or carried into effect at a particular date. He also argues that such
information was publicly available and readily accessible to the Appellant for
the purposes of Regulation 6(1)(b) of the Regulations, and therefore the
Council would not, in any event, have been required to provide it to him by
other means. However, he concedes that the Council was in breach of its
obligation under Regulation 6(2) to inform the Appellant that it was not
providing the information to him because it was already publicly available and
that the Decision Notice may have been defective by virtue of failing to
identify this breach.

Appeal Number: EA/2006/0038

13. We conclude that the Decision Notice was defective in this respect. We do
not accept that the terms of Regulation 6 provide the answer which the
Information Commissioner suggests as it is only brought into play where the
information has been requested in a particular form or format and the Public
Authority declines to provide it in the format requested. However, nothing
turns on the point, given that the Appellant’s own research has brought to light
such relevant material as appears to continue in existence and, for the reasons
given below, the substantive appeal is rejected.

What criteria were applied in relation to the fences at various points in time?

14. The Council’s initial response to the Appellant’s request for information was
that no specific criteria in relation to individual housing property boundaries
had existed at any material time and that individual property demarcations
(including subsequent changes) were determined on the merits of local
situations, conditions and the collective wishes of relevant tenants. The
Witness Statement of Mr Aldis, referred to above, makes reference to the fact
that the witness had himself undertaken an internal review into the original
request for information and had “…established the Council had no further
information to disclose”. We note that when Mr Aldis reported to the
Information Commissioner on that review, by letter dated 14 December 2005,
he used rather more circumspect language in stating that “With…the review of
the information available to me at present…I am reasonable (sic) happy given
the above circumstances that all the information has been declared to Mr
Perrins”. We are a little surprised that the Council did not apparently have
any written guidance for its officers when determining boundary issues, or that
none appear to have survived in its records, but accept that, in the absence of
either a challenge to the Witness Statement of Mr Aldis or the presentation of
any evidence to cast doubt on its accuracy or completeness, the Appellant has
not made out any case to justify his unsubstantiated assertion that other
material must exist.

15. The Appellant also asserted that, because the Council must act lawfully, there

Appeal Number: EA/2006/0038

must exist a law, rule or other specific criteria governing how the boundaries
in question should have been positioned. He does not accept that, while the
general powers of the Council to hold and manage property will be regulated
by law, it will be left with a broad discretion on detailed arrangements such as
boundary lines between parts of its real estate that have been leased to
different tenants. His final written response contains the following passage on
the point:

“When the council “determines where the boundaries are between

properties” there would be criteria establishing the boundaries. How

else would the council decide where exactly the boundary should be

and what line they take – short dog-leg, long dog-leg or in-line with the

internal dividing wall of the property? Evidently this is what occurred

in deciding what line to take with numbers 2 and 35. Not only criteria

determining the boundary line, but a law specifying the criteria”

When the Information Commissioner made the point, in his Reply to the

Grounds of Appeal, that it was wrong to suggest that there must be laws

specifying to every last detail how the Council should act the Appellant

rejected the criticism in a letter dated 31 July 2006, addressed to the solicitor

who had filed the Reply. In it he stated that, although he would not suggest

that there would be detailed rules governing whether the Council should, for

example “use plain or coloured paper clips, or use pencils with plain ends or

with erasers on the end”, nevertheless the issue of determining a front

boundary line was not, in his view, a frivolous issue of that nature. The

inference we draw from those remarks, that the Appellant considers that each

decision on the detailed boundary arrangements between its properties must be

supported by a specific rule, is confirmed by the content of earlier

correspondence with the Information Commissioner in which the Appellant

had suggested that because the Council, as a public body, had to act within the

law, the criteria he was seeking must be based on a “certain section and

subsection of an Act of Parliament”.

16. We reject the Appellant’s arguments on this point. We agree with the
Information Commissioner’s submission that it is a misconception to suppose
that there must be laws specifying to every last detail how an authority is to

Appeal Number: EA/2006/0038

act (including, setting boundary lines between particular properties that it

owns). This is reinforced by, for example, section 111(1) of the Local

Government Act 1972, to which the Information Commissioner drew our

attention. It provides that:

“Without prejudice to any powers exercisable apart from this section
but subject to the provisions of this Act and any other enactment
passed before or after this Act, a local authority shall have power to do
any thing (whether or not involving the expenditure, borrowing or
lending of money or the acquisition or disposal of any property or
rights) which is calculated to facilitate, or is conducive or incidental to,
the discharge of any of their functions.”

Department responsible for changing the criteria.

17. As the Council asserted that there were no criteria falling within questions 2 –
5 then, self evidently, Question 6 was not applicable. However, it was made
clear by the Council that decisions on this type of issues were the
responsibility of the Housing Department.

Criteria applicable today.

18. The initial response of the Council to the original request was to provide the
names of four statutes which governed the Council’s activities. In relation to
relevant criteria the Council wrote:

“It is not possible to offer any meaningful response to item 7 on two

counts. Firstly there has been no new development of Wolverhampton

City Council housing stock since the late 1970’s and there are no plans

for new construction for the foreseeable future, and secondly

Wolverhampton Homes does not exist at present so a prediction of its

policies is totally inappropriate”

The Information Commissioner accepted that position in his Decision Notice

and has argued, on the Appeal, (in addition to the points above) that the

question was hypothetical and is “unlikely to concern “recorded information”

as defined by Regulation 2(1)”. We agree that it is not possible to identify in

these requests any material falling with the meaning of the expression

“environmental information” for the purposes of the Regulation.

Appeal Number: EA/2006/0038

Other issues arising on the Appeal.

19. The Information Commissioner identified a number of other questions which
he believed he had identified in the Grounds of Appeal and other materials
submitted by the Appellant. However, the Appellant has pursued only one of
those issues in the course of this Appeal, namely, whether the Council
complied with its obligation under Regulation 5(4) to ensure that information
it provides is up to date, accurate and comparable. However, having decided,
for the reasons set out above, that the Council does not hold the information
requested, it follows that there can be no breach of any duty relating to
content.

20. We should make it clear that we say nothing in this decision on what
information a public authority should or should not hold; only that on the
particular facts presented to us we do not accept the Appellant’s assertion that
the Council has withheld information from him. Nor do we wish to say
anything regarding the long running dispute that the Appellant evidently has
with the Council, which falls outside the scope of this Appeal, notwithstanding
the Appellant’s occasional attempts to bring it into the proceedings.

Signed:

Chris Ryan

Deputy Chairman Date: 9th January 2007

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You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> Perrins v Information Commissioner" [2007] UKIT EA_2006_0038 (09 January 2007) URL: http://www.bailii.org/uk/cases/UKIT/2007/EA_2006_0038.html Cite as: [2007] UKIT EA_2006_0038, [2007] UKIT EA_2006_38



	Appeal Number: EA/2006/0038 Reasons for Decision Background 1. The Appellant is the tenant of a house in the West Midlands which, in order to maintain anonymity, we refer to simply as no. 11. The landlord is Wolverhampton City Council (“the Council”), which originally owned the freehold of the whole area of land on which the estate where the house is situated was erected in the 1970s. At that stage no boundary fences were erected at the front of the properties but at some stage in the mid 1970s the Council did erect such fencing. In the case of the boundary between no. 11 and its neighbouring property (no.15) it was aligned in the form of a “dog leg”. It is not clear why this was done, although it was suggested by the Council at one stage that this might have been due to the fact that the properties are located at the end of a cul de sac and that, without a dog leg alignment, some of the properties might have been “land locked” (which we assume means that they would not have had access to the public thoroughfare). 2. The boundary between no.15 and its immediate neighbour, no.17, was also aligned at the time in the form of a dog leg. At that stage therefore the gardens of both no. 11 and no. 15 were identical in shape.

	3. In about 1998 the tenant of no. 15 bought the freehold of the property from the Council. At about the same time the boundary fence between that property and its neighbour at no. 17 was re-aligned to form a continuation of the line of the internal dividing wall between the two houses. No equivalent alteration was made to the boundary between no. 11 and no. 15. The garden to no. 15 is therefore now slightly larger than the garden of no. 11. 4. Although the Appellant’s property was not reduced, the enlargement of no. 15 at the expense of no. 17 appears to have caused him concern and he has been

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	Appeal Number: EA/2006/0038

	1. When were the front fences erected? 2 What criteria did the council use, at the time the front fences were erected in 1993, in setting the front boundary lines of 2 and 35 so that their front boundary lines ran in-line with the end walls of the properties? 3. What criteria did [a particular Council employee] use at that time in setting the front boundary line between 15 and 11 as a short dog-leg? 4. What criteria did the Council use in 1998 when setting the current boundary line between 15 and 17 so that it ran in-line with the internal wall of the dividing properties? 5. If the criteria used in 3 above, and the criteria used in 4 above is different, when did it change? 6. What department/departments would have been responsible for making the decision in 4 above? 7. If an open plan estate within the Wolverhampton City limits were to be constructed under the auspices of Wolverhampton Homes, “What would be the criteria/ principle/ standard/ condition/ deciding factor whereby the boundary line is determined between the properties, at the front of the properties, if no boundary line exists on a map or plan?” 7.1 What Act (or Acts) of Parliament (or law) would be utilised? 7. The request was refused and the Information Commissioner was asked to determine whether the Council had handled the Appellant’s request properly. 4



	Appeal Number: EA/2006/0038 The Decision Notice and Appeal to the Information Tribunal 8. The Information Commissioner issued a Decision Notice on 2 June 2006 in which he concluded that the Council had dealt with the Request properly. The Appellant appealed to this Tribunal and by order dated 22 August 2006 the Council was joined as an Additional Party. The Appellant had originally opted for a determination without a hearing and all parties subsequently agreed that the Appeal should be determined on the basis of written materials and submissions provided by the parties. However, some time after the Pre Hearing Review, which the Appellant attended and at which his earlier preference for a paper determination was reiterated, he submitted an 18 page written submission in which he said “I submit that this appeal should be upheld for the reasons given above but disagree with the Commissioner that the appeal should be dealt with without an oral hearing …”. No application was made to reverse the earlier direction that the Appeal should be determined without a hearing, however, and we have therefore proceeded on that basis in the belief that it would be disproportionate, given the subject matter of the dispute, to direct the Appeal to be determined at a hearing. 9. We should add that there has not been complete agreement between the parties as to what documents should be included in the agreed bundle but we have read all the materials that have been sent to us, whether agreed for inclusion or not. 10. It is agreed by the parties that the Appellant’s request is covered, not by the Act, but by the Environmental Information Regulations 2004 (“the Regulations”). Regulation 5(1) requires a public authority that holds environmental information to make it available on request. The authority of this Tribunal to hear the Appeal is to be found in s.57 of the Act, as modified by reg.18 of the Regulations. The Questions arising on the Appeal 11. We have broken the various elements of the Appellant’s original request into 5



	Appeal Number: EA/2006/0038

	Other issues arising on the Appeal. 19. The Information Commissioner identified a number of other questions which he believed he had identified in the Grounds of Appeal and other materials submitted by the Appellant. However, the Appellant has pursued only one of those issues in the course of this Appeal, namely, whether the Council complied with its obligation under Regulation 5(4) to ensure that information it provides is up to date, accurate and comparable. However, having decided, for the reasons set out above, that the Council does not hold the information requested, it follows that there can be no breach of any duty relating to content. 20. We should make it clear that we say nothing in this decision on what information a public authority should or should not hold; only that on the particular facts presented to us we do not accept the Appellant’s assertion that the Council has withheld information from him. Nor do we wish to say anything regarding the long running dispute that the Appellant evidently has with the Council, which falls outside the scope of this Appeal, notwithstanding the Appellant’s occasional attempts to bring it into the proceedings.

	Signed: Chris Ryan Deputy Chairman Date: 9th January 2007

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United Kingdom Information Tribunal including the National Security Appeals Panel