Matthew Burn v The Information Commissioner

On 16 May 2023, the appellant wrote to the Council and requested information in the following terms:

“Please provide me with a copy of the latest Meridian Water Masterplan, which I understand has now been completed.

Like many other people, I have a strong interest in the Council’s plans regarding the regeneration of Median Water, in particular:

• The planning for the delivery of good quality, sustainable, safe, and genuinely affordable family housing.

• Plans for the provision of adequate green space (in terms of quantity, quality, and accessibility), and in particular the Council’s response to the new Banbury Reservoir Park proposed by CPRE.

• Planning for connectivity and accessibility to and across the site, in particular provisions to ensure that existing local communities will have easy and safe access to the planned new amenities and services.

These complex issues and concerns have been raised numerous times by residents, councillors and members of scrutiny committees and should have been comprehensively addressed within the latest masterplan. I would therefore be grateful if this could be provided to me, or, better still, published on the Council’s website.

Secondly, I would also be grateful if you would confirm the Council’s plans to consult the public regarding the now completed Meridian Water Masterplan.”

In its response on 12 June 2023 the Council stated:

“Meridian Water is a complex site with many constituent parts. Aspects of the masterplan which are complete and not commercially sensitive have been shared publicly including the Meridian Water draft Supplementary Planning Document (SPD) which was consulted on in November and December 2022. A draft copy of the document can still be seen here and this constitutes the entirety of the masterplan which has planning policy in place to bring forward development. The Council intends to formally adopt the SPD this summer following amendments which resulted from consultation engagement and this will be a publicly available planning document. This SPD covers development for the next 10+ years and conforms with the Edmonton Area Action Plan – this is the work that is substantially complete.

Other aspects of the masterplan are not complete and work is ongoing on these elements; they cannot yet be shared due to commercial sensitivities. However, once information is shareable this will be published for feedback. The Council plans to engage with landowners and the wider community as work progresses. Officers also update Cabinet from time to time as the Meridian Water programme progresses. Please also keep an eye on our website.

The Meridian Water team are engaged in collaborative work with the London Borough of Waltham Forest regarding Banbury Reservoir. Both boroughs plan to work with Thames Water to explore future opportunities to improve public accessibility of this asset as part of a wider connectivity strategy. An emerging vision has been prepared between the boroughs, some of which was shown for community discussion as part of the SPD consultation process. I have appended relevant emerging project ideas which have been worked up with some prior engagement from CPRE. In the event that projects receive funding and can be taken forward, wider community engagement will be undertaken and predominantly led by Waltham Forest (as Banbury Reservoir sits within the Waltham Forest borough boundary).

The Banbury Reservoir work forms part of a wider wayfinding strategy which is an ongoing piece of work at Meridian Water. Wayfinding will play a key role in connecting the masterplan with the wider community. The Council is exploring meanwhile wayfinding interventions which can be installed as the scheme develops.”

On internal review the Council stated that the response should have stated that the refusal relied on section 43(2) of the Freedom of Information Act 2000 and stated that there should have been additional narrative in the initial response on how the Council came to that conclusion. The internal review upheld the decision to withhold the information under section 43(2).

The internal review stated:

“[The] completed components of the Meridian Water masterplan are precisely the Meridian West SPD (which is due to be formally adopted very shortly). The remainder of the masterplan will include land to the east of the SPD area. This area is currently Strategic Industrial Land, there are a series of planning matters to resolve before the team can start to show a comprehensive long-term approach to the latter stages of the masterplan. As such, the only corporately approved information on the entire masterplan internally is in the format of a spreadsheet which contains financial forecasting information associated with future development – this was the document associated with the latest Meridian Water Cabinet report (April 2023). It should be flagged that associated spatial masterplan information is not complete.”

During the course of the Commissioner’s subsequent investigation the Council accepted that the request should have been dealt with under the Environmental Information Regulations but stated that the only information that had been withheld under regulation 12(5)(e) related to the IKEA site and could now be released. The Council stated that no other information had been withheld.

Following a further query from the Commissioner the Council stated its position as follows on 31 October 2023:

“I would firstly like to highlight that following the Council’s publication of the 2013 Masterplan, Enfield Council’s master planning process for Meridian Water comprises of a series of evidence based ‘masterplan documents’ to support delivery across the different parcels and phases of the programme. As a result, there is not, a single ‘masterplan’ document that exists but rather a series of complete evidence-based documents, which form the Masterplan and set out the intentions for the site.

In their original request, the requester asked for a copy of the latest Masterplan, which he understood to be complete. The Meridian Water Team has reiterated that there is a misunderstanding on this front, as the Masterplan is not complete nor has the Council made a statement that it is.

The Meridian Water Team has reiterated that for something to constitute a ‘Masterplan’ it has to have been agreed upon and adopted. In previous responses there has been reference to aspects of the Masterplan currently being progressed to inform the emerging Enfield Local Plan. The Enfield Local Plan will provide a single planning policy document for the borough and a vision for how Enfield will spatially develop to 2039 and beyond. There are aspects of the draft local plan, which contain specific sections on Meridian Water. However, this document would only form part of the Masterplan if it is adopted and agreed upon. At this moment in time, it has no current status and therefore the Council does not consider it to form part of the Masterplan. This is because the emerging Enfield Local Plan proposals still need to go through a formal Regulation 19 consultation and then an Examination process.

I have outlined below the information/documentation that the Council considers to be the Masterplan.

• The original 2013 Masterplan, a link to which I have included here. planning-informationmeridian-water-masterplan-july-2013.pdf (enfield.gov.uk)

• The Supplementary Planning Document (SPD)(Meridian West) – Originally provided in draft form at the time of the original request and then a link was provided to the final version, which was published later. Please note that this SPD document does address some aspects of the East of the site Meridian West Supplementary Planning Document (enfield.gov.uk)

• The Council’s Cabinet Papers (KD5463) dated 19 April 2023. Please see links below to the Council’s Democratic Pages where this report is saved as part of the Cabinet Papers for this meeting. https://governance.enfield.gov.uk/ieListDocuments.aspx?CId=107&MId=14308&Ver=4 https://governance.enfield.gov.uk/documents/s97357/PL2223%20xxx%20KD5463%20MW%20Finan cial%20Model%20Part%201%20v6.pdf

• The information provided regarding the plans for the IKEA site, which was originally withheld on grounds of commercial sensitivity, and has since been provided in our correspondence with you.

• The Strategic Infrastructure Work Planning Permission (which is a key planning application that forms part of the Masterplan) This can be found on the Council’s online planning portal https://www.enfield.gov.uk/services/planning/the-planning-register . The reference number for the application is 19/02717/RE3 Therefore, I can confirm that the requester has received everything that the Council holds that constitutes the Masterplan. We have nothing further to disclose and are not relying on any exceptions to withhold any information.”

After the decision notice was issued, the Council was asked for and provided additional clarification on 30 November 2023 as follows:

“The Council would firstly like to clarify that Meridian Water Masterplan 2.0 (or V2) is the name the Meridian Water team gave to the process of refreshing the original masterplan (a copy of the 2013 Meridian Water Masterplan has previously been provided).

• The supporting evidence provided dating back to 2020 refers to this masterplan design process, and the ongoing work, not a completed document. There is not one complete Masterplan 2.0 (or V2) document that been used as a basis for decision making.

The Council considers that it is important to draw the focus back to the requester’s original request, dated 16 th May 2023. This asked the following:

• Please provide me with a copy of the latest Meridian Water Masterplan, which I understand has now been completed.

As explained within previous responses, the dynamic masterplanning process at Meridian Water is ongoing and will continue throughout the 30+ year lifespan of the project. Our approach is continually evolving, informed by changing factors including land ownership, planning policy, building safety, environmental and technical standards. Enfield Council’s website will continue to provide updates on the masterplanning process. Details of public engagement and formal consultation will be shared as plans for Meridian Water develop over time and across different phases and parcels.

As of the date of the original request, the key masterplanning document is the Meridian Water SPD. A draft version of the SPD was provided in our original response to the complainant dated 12 th June 2023. The full document was provided in our response dated 31 st October 2023.

The complete 2023 Meridian West SPD document has been published to inform decision making for Meridian Water. It contains policy guidance that covers the following:

• MW1 – Movement and connectivity

• MW2 – Carbon reduction

• MW3 – Blue and Green network

• MW4 – Sustainable construction management

• MW5 – Housing and design quality

• MW6 – Commercial activity areas

• MW7 – Delivering a new town centre

• MW8 – Social infrastructure

• MW9 – Managing transitions

• MW10 – Tall building strategy

Details of the full planning permission for Strategic Infrastructure Works (reference 19/02717/RE3) and information relating to third party owned “IKEA” land have also been provided. These cover large portions of the Meridian Water masterplan area.

The Council hopes the above clarification is helpful. For completeness, we respond to the key points raised in your communication, as follows:

• Your enquiry has referred to ‘Meridian Water Masterplan V2 (also referred to by the Council as the ‘Meridian Water Masterplan 2.0) as being ‘functionally complete’ and used as a ‘basis for decision making’

I can confirm that Meridian Water Masterplan V2/2.0 is a workstream process, not a single document that has been completed and used for decision making. The SPD is the copy of the latest masterplan that has now been completed, which is what the complainant originally requested.

• Your enquiry makes reference to the fact that extracts from the Meridian Water Masterplan V2 appear in other documents. You have asked that, in light of this, why the Council has not listed the Meridian Water Masterplan V2/2.0 in the documents

Please refer to the explanations provided above. The references to V2/2.0 that appear in the documents refer to the ongoing masterplanning process – not one complete document used for decision making.

Please refer to the previous explanations. The third party owned “IKEA” land forms part of the Meridian Water masterplan area. A copy of the third-party marketing information has been provided and this has been informed by the policy guidance and vision set out within the Meridian Water SPD.

I trust the above clarifies why the Meridian Water Masterplan V2/2.0 has not been referenced in the Council’s response to the complainant’s request which was for “a copy of the latest Meridian Water Masterplan, which I understand has now been completed”. From the Council’s perspective, we have satisfied the first element of the original request, as a copy of the latest Meridian Water Masterplan (the SPD document) has been provided.”

In a decision notice dated 17 November 2023 the Commissioner decided that the request should have been dealt with under the Environmental Information Regulations 2004 but that the Council did not hold any further information.

The Grounds of Appeal are, in essence, that the Council holds further information within the scope of the request.

The main points of the Commissioner’s response are as follows.

On reviewing this matter the Commissioner considered the scope of the original request to be for a completed masterplan, as per the 2013 completed masterplan. Arguably this would mean no information was held by the Council at the time of the request as no such document existed as it was still a fluid workstream process. Despite the documents provided by the appellant alluding to the existence of a masterplan v2, the Commissioner found that these referred to the process rather than a completed document, and therefore remained satisfied the Decision Notice had not been disturbed.

The Commissioner also noted that to be of assistance to the appellant, the Council did provide documents that had been completed that it considered reflect the emerging masterplan, such as the Supplemental Planning Document. The Commissioner remained satisfied that at the time of the request, this was the extent to which any documents were arguably within scope of the request. The Commissioner considered that the request was clearly only for a completed single masterplan document, and not for all draft internal discussions and documents concerning the development as a whole. If the request were for anything else it would have been those main completed documents setting out the proposed future of the site which were the documents that the Council sent.

In his reply the appellant submitted that the Council held additional information within the scope of his request which it should have made the Commissioner aware of i.e. that it has a functionally complete Masterplan document or documents, which have been used as the basis for key decisions, including expenditure of public funds. Secondly, that the Commissioner made its decision before properly considering the evidence available to it.

Section 1(1) FOIA provides:

“Any person making a request for information to a public authority is entitled –

(a)

to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)

if that is the case to have that information communicated to him.”

The scope of a request is determined objectively, in the light of all the surrounding circumstances.

The question of whether information was held at the time of the request is determined on the balance of probabilities.

The tribunal’s remit is governed by section 58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether he should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

The issues for the tribunal to determine are:

The tribunal read an open bundle.

The following findings of fact are made on the balance of probabilities.

In a Cabinet report dated 25 July 2018 the Council stated that the masterplan that had previously been developed ‘is currently being updated’.

A report to Cabinet dated 15 July 2020 stated ‘Works on Masterplan V2 have been procured and commenced with total spend of £1.2m’

A report to Cabinet dated 16 September 2020 stated:

“The Meridian Water Masterplan is currently being revised, and the Masterplan, along with the Financial Model, and various site wide strategies will inform the future Phasing Plan and phased delivery strategy.

The Meridian Water Masterplan 2.0 is being developed in coordination with other borough-wide planning studies and initiatives including the Enfield Local Area Plan 2036 which is currently under preparation. The masterplan will be a critical evidence piece to inform new area-based policies for Meridian Water in the new Local Plan for the next 10 years. It is likely to be a material consideration in planning decisions and will be used to inform the new Local Plan and site-specific planning briefs, the study may be taken further as a Supplementary Planning Document (SPD).”

That report of 16 September 2020 also outlines the ways in which ‘the team currently working on a new site-wide masterplan’ are responding to the pandemic, including:

A letter dated 6 October 2020 from the Leader of the Council, and Peter George, Meridian Water Director, to the scrutiny panel states:

“We are preparing the second version of the Meridian Water masterplan which also demonstrate how these housing and employment targets can be achieved. The next version of the masterplan will be subject to public consultation and we would welcome your feedback at that stage.

…

…The new masterplan, guided by the Meridian Water Environmental Sustainability Strategy (ESS), sets out ambitious plans for Meridian Water to have 30% quality green open space which is considered best practice within London.

…

… That level of rail service, combined with new bus routes, supports the housing density proposed in the new masterplan. Planning Policy requires all development sites to achieve optimum levels of homes to address the chronic shortage of homes nationally. The new Meridian Water masterplan demonstrates how the optimum level of density can be achieved within a high-quality environment.”

In November 2020 in response to an FOI request, Lisa Woo, Head of Placemaking at the Council stated:

“The current draft version of the Meridian Water masterplan contains plans for 30% publicly accessible open space. The research materials to support the provision of greenspaces are still in draft form and in the course of completion. They are subject to further comments, change and approval from Cabinet. These plans, inclusive of supporting evidence, will be available for release following Cabinet approval which is expected to occur in summer 2021.”

A document entitled ‘Meridian Water Greenspace paper’ dated March 2021 prepared for the Council by Periscope, states:

“In 2020 Enfield Council commenced work on a new masterplanning effort for Meridian Water. Building on ELAAP, ‘Masterplan 2’ is the working title for the new masterplanning process, which responds the Climate Emergency, the Place Pillars and the ESS.

Central to the new masterplanning work is the idea of plentiful and equitable green space for all. The masterplan seeks to increase the levels of open space against previous versions, aiming to ensure that every household is no more than 2 minutes walk from a quality piece of open space. This distance metric is to be achieved through use of a ‘green loop’ a high performance landscape infrastructure element that contains space for play and recreation. The Green Loop can be seen in the illustration below”.

The ‘illustration below’ is an image labelled ‘Meridian Water Masterplan 2’.

The minutes of a meeting of the Regeneration & Economic Development Scrutiny Panel held on 17 March 2021 state that the masterplan ‘was being updated and due to go to Cabinet for formal approval by the end of the year’ and that ‘Included in the new masterplan for Meridian Water were plans to meet a 30% open space requirement. This was an increase of 12% on what had originally been envisaged.”

A report to the Environment and Climate Action Scrutiny Panel dated 12 October 2021 and entitled ‘Meridian Water Environment Strategy Progress Update’ states that ‘There is much ongoing work in progress on the emerging masterplan’. Appendix B to that report included ‘responses to detailed questions’ and indicated that the question of ‘When the revised masterplan will be reviewed with Council Cabinet’ was ‘being worked on and will become available’.

In response to a question on the quantity of green spaces, the appendix stated:

“The masterplan layout is under development and currently comprises interim areas, to be further developed through the ensuing masterplan design process, during which detailed maps will also be provided.”

There is a report dated 30 November 2021, presented to the Council’s Regeneration and Economic Development Scrutiny Panel, entitled ‘Draft Meridian Water Masterplan briefing’. The purpose of the report is stated to be “To inform and gather input … on the draft Meridian Water Masterplan”. The report states:

“The Masterplan is undergoing financial review and will be brought forward to Cabinet for approval to consult in summer 2022… The Scrutiny Panel input is pivotal to the success of the Masterplan and resident engagement following cabinet approval planned in summer 2022”

Attached as an appendix to that report was a set of slides entitled ‘Meridian Water Masterplan Briefing’.

A report to a Cabinet meeting dated 6 July 2022 detailing the capital expenditure during the year states:

“Work continued on refining and updating the project masterplan including incorporating changes required due to planning. A separate report is scheduled for presentation to Cabinet in Autumn 2022 which includes an update on the Meridian Water financial model.”

A report dated August 2022, entitled ‘Ikea Briefing Document’ includes two parts, part 1 a Corporate Brief and part 2 a Planning Brief. The report states:

“The Meridian Water Corporate Brief sets out Enfield Council’s corporate priorities and requirements on the IKEA development site against the Meridian Water 20 year Masterplan.”

The IKEA briefing document refers to the ‘emerging Masterplan 2.0 and includes a number of images labelled as ‘Emerging Masterplan 2.0 Spatial vision’:

The IKEA briefing document states:

“The purpose of this document is to present the aspirations for the Ikea site as part of the Meridian Water masterplan 2.0 vision. This reflects Enfield Council’s core strategies and the development’s Placemaking Pillars in the context of emerging policy documents and works delivered to date, current as of May 2022. This document has been compiled by Periscope and Kjellander Sjoberg, on behalf of Enfield Council. Images produced by Periscope and Kjellander Sjoberg, with information support from Mae.”

The Meridian Water Team underwent a restructure in 2023. We have seen two reports on the restructure. The restructure report dated 18 February 2023 includes the following in its executive summary:

“The Placemaking and Regeneration Teams have delivered on their key objectives including the Masterplan, Supplementary Plan, a high focus on sustainability, Land Assembly engagement, a wealth of Meanwhile activity and the launch of the Skill Academy. “

We find that this shows that at least Peter George, the Director of Development, considered the Masterplan and the Supplementary Plan to be different things.

In appendix three to that report there is a breakdown of current posts. That includes the Senior Design Manager in Placemaking. The related restructure report comment is:

“Masterplan vision substantially complete. Ongoing amendments to the masterplan to be transferred to in-house capacity to save costs and reflected in urban designer and design manager roles, as such this post can be deleted.”

The restructure report dated 18 April 2023 includes a section entitled ‘queries received during the consultation period’. One of those queries, presumably from an affected staff member, was ‘How will the masterplan be used going forward?’ Part of the answer to that question was:

“The Placemaking Team has not been deleted just reduced to reflect the number of the workstreams coming to an end and the new delivery strategies – for example the Masterplan is not expected to be revisited for a number of years and the SPD has now reached the final stages of approval and is being led by the Strategic Planning Team.”

A document entitled ‘Meridian Water Financial Model’ dated 19 April 2023 was brought to Cabinet on 19 April 2023. Under the heading ‘Revised assumptions in Financial Model’ it states:

“In addition to testing the new parameters of building areas and use classes

presented in the Meridian Water master plan, the financial model development required a robust review and update of all financial assumptions to reflect the current market where we are experiencing unprecedented levels of inflation, In this changed landscape, the assumptions in the Financial Model have been interrogated and updated by market experts.”

The Financial Model also contains a section headed ‘Masterplan Evolution’ which includes the following:

That document contains further references to the masterplan, including for example:

“Pregnancy and Maternity

The Master Plan ensures all infrastructure to be accessible wherever necessary as well as ensuring the inclusion of health provisions.”

We agree with the Commissioner (and it is not disputed) that the Environmental Information Regulations 2004 apply to this request.

Looking at the wording of the request, construed objectively in the light of the surrounding circumstances, the tribunal finds that for a document to form part of the ‘latest version of the masterplan’ at the date of the request, and accordingly to fall within the scope of the request, we find that it is not necessary for any documents to have been completed, agreed upon and adopted.

Although the appellant states in the request that he understands that the Masterplan has been completed, this is expressly only his understanding of the position. He does not ask for the completed version or the final version, he asks for the latest version.

It is clear from the many references to, for example, ‘the Master Plan’, ‘the emerging masterplan’, or ‘changes in the Masterplan’ that the Council itself uses the term ‘Masterplan’ to refer to documents that have not yet been agreed upon or adopted and are currently being worked on and/or updated. For example, the Council stated that work continued on refining and updating ‘the project masterplan’ including incorporating changes required due to planning and referred to the fact that ‘the masterplan will continue to evolve’.

To give a further example, the Council stated that ‘the Meridian Water masterplan has gone through several iterations’ to improve and optimise its design alongside responding to changes in policy and regulations. It also states that ‘the new masterplan…sets out ambitious plans for Meridian Water to have 20% quality green open space’ and stated that ‘the Masterplan is not expected to be revisited for a number of years’.

We do not accept that the request for the ‘latest’ version limits the request to the SPD document. The SPD document only relates to part of the site. The request also encompasses the latest version of any other documents that form part of or contain any aspect of what is referred to by the Council in any of the terms that follow.

For those reasons, the tribunal finds that the request encompasses the latest version (at the date of the request) of any documents, whether or not agreed, complete or approved, which formed part of or contained any aspect of what is referred to or meant by the following references set out in our findings of fact above as:

In our view, at the relevant date and on the balance of probabilities, the Council held further information within the scope of the request. The Council’s interpretation of the request was narrower than that found by the tribunal.

We do not accept that the Supplementary Planning Document and the other documents set out at the bottom of page two of the Council’s letter of 31 October 2023 are the only documents held by the Council that fall within the request for the ‘latest version’ of the Masterplan.

As we have set out above, we do not consider that a document needs to be complete or agreed or adopted to form part of the Masterplan. In our view, there are likely to be documents other than those already disclosed by the Council, which might be incomplete, in draft form, or not agreed or approved, but which form part of or contain an aspect of what is referred to or meant by the following references set out above. Nor do we accept that it is limited to the SPD, as the ‘key masterplanning document’ at the date of the request.

Documents held by the Council within the scope of the request will include, for example, any documents containing the draft spatial vision, or the ‘associated spatial masterplan information’ referred to in the internal review response dated 5 July 2023 and the related aspects of the draft local plan.

This would also include the latest version (at the date of the response to the request) of the spreadsheet containing financial forecasting information associated with future development referred to in the internal review response dated 5 July 2023. It is not clear to us if this has already been disclosed to the appellant in full.

As the Council has, presumably, not conducted a search for any other documents that had not been completed, agreed or adopted, there may be other documents that fall within the scope of the request as determined by the tribunal.

For those reasons the appeal is allowed. As the Council took a different view of the scope of the request, the Council will need to carry out a new search for documents that fall within the scope of the request as defined and then consider if it wishes to rely on any exemptions. We have dealt with this by way of case management orders. Once any information within the scope of the request has been disclosed and the application of any exemptions have been determined we will decide on the terms of any substitute decision notice.