Government of Jersey

Planning Obligation Agreement (FOI)

Produced by the Freedom of Information office
Authored by Government of Jersey and published on 15 July 2021.
Prepared internally, no external costs.

Request

This question references the Planning Obligation Agreement (POA) of 8 November 2016 between, on the one part, the Chief officer for the Environment, and on the other, Field 790 Limited, [name redacted], the Minister for Education and the Minister for Economic Development.

Please can I be informed of the following:

Has the Chief Officer for the Environment confirmed to the parties that in his or her view all the obligation in the POA have been completed; and if so, when?

In particular, with reference to the development obligations in the Third Schedule of the POA, please can I be informed if the Chief Officer is satisfied, formally, that the obligation in paragraph six thereof has been met, which inhibits occupation of the development until contracts have been signed by the two Ministers noted above securing use of the facility by schools, sports associations and community groups for the next 21 years

If he or she has had sight of those contracts and has taken legal advice to confirm, or otherwise, that they are in full order for the purpose of completing the obligations created by the POA

If he or she has not seen or been sent such contracts, or not yet satisfied her or himself as to their effectualness for the purposes of the POA, what steps have been or will be taken to ensure that, in line with the POA, the facility is not occupied until such time as the contracts are signed and confirmed by the Chief Officer to be fully in order for the purposes of the Applicant's meeting his legal obligations under the POA?

Please provide copies of all letters and email correspondence between the Planning Department and the Applicant, and the Planning Department and the Education and Economic Development Department, relating to the POA and its terms, from 1 September 2016 to the present moment

Please also provide copies of emails between the same dates to, from and between the Chief Officer and members of the Planning Team in the Department, in relation to all aspects of the POA

Response

This particular Planning Obligation Agreement is an ongoing agreement which requires the provision of services into the future, so it cannot be said to be completed until it has been fully discharged.

B and D

The Fourth Schedule set out on pages 21-30 of the POA constitute the signed contract between the relevant parties that relate to section six of the Third Schedule.

Yes, legal advice was obtained during the drawing up of the Planning Obligation Agreement.

E and F

Copies of all relevant documents held that relate to the POA are attached. Personal information has been redacted in accordance with Article 25 of the Freedom of Information (Jersey) Law 2011. Correspondence containing advice given by the Law Officers Department has been withheld in accordance with Article 31 of the Freedom of Information (Jersey) Law 2011.

Additionally, a link to a previous Freedom of Information request that contains documents that are relevant to your request is attached below:

Documents relating Planning Obligation Agreement of Field 790 (FOI)

Articles applied

Article 25 - Personal information

(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.

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.

Public Interest Test

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.