Case References: FT/EA/2024/0462
FT/EA/2024/0465
FT/EA/2025/0107
Information Rights
Heard by Cloud Video Platform
Before
TRIBUNAL JUDGE SHENAZ MUZAFFER
TRIBUNAL MEMBER JO MURPHY
TRIBUNAL MEMBER DAVE SIVERS
Between
ALAN TINLING
Appellant
and
THE INFORMATION COMMISSIONER
First Respondent
and
LONDON BOROUGH OF WALTHAM FOREST
Second Respondent
Decision: The appeals are dismissed.
REASONS
These are three linked appeals against the following decisions of the Information Commissioner (“the Commissioner”):
- Decision Notice dated 30 October 2024, reference IC-316847-F3X2 (“the first Decision Notice”);
- Decision Notice dated 04 November 2024, reference IC-315630-G3H3 (“the second Decision Notice”); and
- Decision Notice dated 04 February 2025, reference IC-324757-F4S6 (“the third Decision Notice”).
A hearing took place via Cloud Video Platform on Friday 04 July 2025. The Tribunal was satisfied that it was fair and just to conduct the hearing in this manner. No adjustments were requested by any party. The Appellant represented himself. The First Respondent did not attend. The Second Respondent was represented by Mr Peter Lockley, Counsel. Ms Heidi Balci, Data Protection Manager, Senior Information Risk Owner and a Deputy Data Protection Officer employed by the Second Respondent gave evidence on their behalf.
Factual background
The three appeals relate to the application of the Environmental Information Regulations 2004 (“the EIR”). They all concern information held by the London Borough of Waltham Forest (“the Council”).
The procedural history is complex, not least because it includes other requests that are not the subject of these linked appeals and service complaints made by the Appellant to the Council. Only those matters which are relevant to these linked appeals are set out here.
The requests and responses
FT/EA/2024/0462
The Appellant made the request (“the first request”) which is the subject of appeal reference FT/EA/2024/0462 (“the first appeal)” on 02 April 2023 in writing as follows:
“Under Freedom of Information Act/Environmental Information Regulations I would like to request the following information – All for single storey rear infill extension [address redacted]. Planning application XXXX14.
Please give foundation/excavation trench depth measurement.
Please give depth measurement for foundations concrete base pad.
Please give depth/height measurement for the blockwork and brickwork built up to top of the base pad – To above ground level”.
The Council responded on 09 May 2023 in writing as follows:
“The Council’s Building Control Team has provided the following information in relation to your request, which is all of the information requested that we hold:
07-10-2021 Excavation of Foundations Depth of excavations seen to be 1m, in good ballast soil, for the rear 3m of the 6m extension, existing front foundation to remain with dowel bars fitted in to the new concrete pad”.
The Appellant requested an internal review on 11 May 2023 on the basis that he had not received the requested information. He stated that he had been given information for a rear extension dated 07-10-2021, rather than the requested information in relation to the rear infill extension retrospective planning application XXXX14.
The Council conducted an internal review and issued a response to the Appellant on 31 May 2023. The response stated as follows:
“Please give foundation/excavation trench depth measurement
Our Building Control records indicate that the foundation excavations were recorded as being witnessed on the 07-10-2021 – A single senior surveyor carried out the inspection and recorded the inspection as follows: “Depth of excavations seen to be 1m, in good ballast soil, for the rear 3m of the 6m extension, existing front foundation to remain with dowel bars fitted in to the new concrete pad. Agreed that the far face of the end of the excavation be lined with DPM. Drains found to be shallow, and new runs to be connected to the existing MH.
Please give depth measurement for foundations concrete base pad
This has not been specifically recorded in our Building Control notes. This is generally witnessed at DPC stage and would only be recorded if contraventions were observed. No information is therefore held.
Please give depth/height measurement for the blockwork and brickwork built up on top of the concrete base pad – To above ground level
The service have interpreted this to refer to the height from the top of the foundation concrete to the ground level. This information is not recorded unless there is a perceived issue that needs remedial works, but as with the second point above would have been witnessed at DPC stage. A different senior surveyor reviewed the building at shell stage (DPC, Walls, Roof etc) on the 4th November 2021. No contraventions were noted. No information relating to this question is held”.
On 26 July 2023, in response to a complaint raised by the Appellant with the Council, the Council wrote to the Appellant as follows:
“You asked for information about an extension to a building, the address of the building [address redacted]. The Planning Application number is XXXX14. In addition, you provided the following information to describe the extension in question: “rear infill extension RETROSPECTIVE PLANNING APPLICATION XXXX14”.
You believe that the council has provided information in relation to another planning application at the same address, with reference XXXX10.
Your question referred to a Planning Application, but you asked about the depth of foundations and height of blockwork, which are not matters for the Planning Application team, they are matters that are dealt with by the Building Control team. The Planning Applications team and the Building Control team are two different teams in the council.
Therefore, the information, if held, could only be searched for, and provided by, the Building Control team. In order to provide the information in fulfilment of your request, it was thus the Building Control team that undertook the search against the address you provided.
When this search was carried out, it was found that the Building Control team only held one record and this record was the one for the rear infill extension retrospective planning application with reference XXXX14. The information you asked for was then disclosed to you, both in the original response on 9th May 2023 and with further details provided to you in the FOI review response of 31st May 2023”.
On 30 August 2023, the Commissioner issued a Decision Notice, reference IC-238272-R8V3, in which he stated that the Council had not dealt with the Appellant’s request for information under the correct access regime. The Commissioner required the Council to issue a fresh response in compliance with regulation 5(1) of the EIR.
The Council provided a response under EIR on 22 February 2024 which stated:
“All information is in relation to single storey rear infill extension [address redacted]; Retrospective planning application XXXX14.
As the following queries relate to structure, I believe this question to be in relation to Building Control and the Building Regulations rather than Planning and I can advise that the Councils Building Control Service have one application for a rear extension on [address redacted]. Our Building Control Reference is 2232/21/BN and the following information is provided from the public record:-
Application Number
Application Type
Location
Decision Statuses
Received Date
Started Date
Completed Date
2232/21/BN
Building Notice
[Address redacted]
Valid
01-09-2021
01-07-2022
04-01-2022
Please note that no plans or details were provided or required under the Building Notice process, but for clarification it appears the infill extension was considered as part of this single application”.
The remainder of the response contained identical information to that which was provided to the Appellant on 31 May 2023 [see paragraph 8], save that an additional sentence was included at the end of the response to the first query about the foundation/excavation trench depth measurement which read “Whilst the infill extension is not specifically mentioned in the notes, I understand from discussions with the surveyor that the note is relevant to the infill part”.
On 18 March 2024, following an email from the Appellant to the Commissioner regarding Decision Notice reference IC-238272-R8V3, the Council sent an email to the Appellant which read:
“Further to your recent communications in respect of the EIR response, I would like to clarify that the two services of Planning and Building Control and separate services within the Council, carrying out separate functions and accordingly whilst the Planning Service did receive two separate applications for separate extensions, the Building Control Service only received one building regulation application and both of the extensions were considered under that single building regulation application, accordingly the notes and considerations previously provided by building control were relevant to both extensions and to reiterate, after discussion with my surveyor, we are satisfied that the foundations provided are satisfactory.
As it appeared that the primary concern was in relation to foundation design, it was felt that Building Control would be best placed to provide the necessary answers and as noted, Building Control has just the single application reference that covered both extensions”.
The Appellant lodged a request for an internal review with the Council on the same date, 18 March 2024, on the basis that he had not been provided with the information relating to the single storey rear infill extension, planning application XXXX14.
On 26 June 2024, the Appellant made a complaint to the Information Commissioner on the basis that he had not received a response to his request for an internal review.
On 27 July 2024, the Council sent the outcome of the internal review to the Appellant, in which the Council upheld its original position.
On 23 October 2024, the Council wrote to the Commissioner to set out the history of the first and second request. The letter stated:
“In relation to the request dated 04 April 2023, the requester believes that because there were two planning applications that there should be two building control applications which is not the case. Both planning applications were held in under one record with he Building control team.
There is no requirement for there to be the same number of building regulation applications as planning applications as the two services carry out entirely different functions. It is therefore common that works do not need any planning permission, but may still require building regulation consent and vice versa, or it may be as in this instance that 2 or more applications are considered under various planning processes, but only one building regulation application is required.
As stated to the requester planning applications consider to visual effects of the building including shape and size. The Building control oversee the technical construction of the building, therefore the information which the requester asked for on 04 April 2023 could only have been answered by information held by the Building Control team. The only record which they held relating to the address and rear infill extension was one record with the reference: 2232/21/BN”.
FT/EA2024/0465
The Appellant made the request (“the second request”) which is the subject of appeal reference FT/EA/2024/0465 (“the second appeal)” on 09 May 2023 in writing as follows:
“Under Freedom of Information Act I would like to request the following information from Waltham forest Council. All information is in relation to single storey rear infill extension [address redacted]; Retrospective planning application XXXX14.
Please state/describe method or process that was used to check and then verified that excavations/foundations are compliant with current Building Regulations.
Please give date(s) when on-site investigation of this structures excavations/foundations took place.
Please give number of employees/operatives on-site on investigation date(s).
Again all request information is in relation to SINGLE STOREY REAR INFILL EXTENSION. RETROSPECTIVE PLANNING APPLICATION XXXX14”.
The Council responded on 26 May 2023 in writing as follows:
“I apologise if there was any confusion or misunderstanding on our part previously.
I can advise that the Councils Building Control Service have one application for a rear extension on [address redacted]. Our Building Control Reference is 2232/21/BN.
I have looked at the Building Control Records for the this [sic] extension and can advise the following with regard to your FOI queries and latter questions”.
The response then provided identical information to that which was also provided in response to the first request on 31 May 2023 [see paragraph 8].
The Appellant requested an internal review on 26 May 2023 on the basis that his information request had not been answered and that the Council did hold the relevant information.
On 27 June 2023 the Council responded to the Appellant. They stated that the response that had been sent to the Appellant on 26 May 2023 in relation to the second request also included the response to the first request. They recognised that this had caused some confusion, but highlighted that the questions raised in the second request had all been answered in the first part of the response that had been sent to the first request. In addition, they stated as follows:
“To assist in clarifying the response to you I have separated the response out in relation to your individual questions as follows:
Please state/describe method or process that was used to check and then verified that excavations/foundations are compliant with current Building Regulations.
Depth of excavation seen to be 1m, in good ballast soil for the rear 3m of the 6m extension, existing front foundation to remain with dowel bars fitted in to the new concrete pad. Agreed that the far face of the end of the excavation be lined with DPM. Drains found to be shallow, and new runs to be connected to the external existing MH.
Please give date(s) when on-site investigation of this structures excavations/foundations took place
7th October 2021
Please give number of employees / operatives on-site on investigation date(s).
A single senior surveyor carried out the inspection”.
On 30 August 2023, the Commissioner issued a Decision Notice, reference IC-249992-J5P6, in which he stated that the Council had not dealt with the Appellant’s request for information under the correct access regime. The Commissioner required the Council to issue a fresh response in compliance with regulation 5(1) of the EIR.
The Appellant requested an internal review on 04 March 2024 on the basis that he had not been provided with information relating to the correct planning application. The Council responded on 20 March 2024. The response repeated the responses that had been provided on 26 May 2023, 22 February 2024 and 18 March 2024.
On 10 June 2024, the Appellant made a complaint to the Information Commissioner on the basis that he had not received the information that he had requested for the single storey rear infill extension.
On 15 October 2024, in response to questions posed by the Commissioner, the Council provided the following information:
“i. Please describe thoroughly any searches of relevant paper/electronic records and include details of any staff consultations undertaken by the Council in relation to the information sought by the request.
All relevant material such as drawings, specifications, calculations, site inspection records and correspondence are recorded onto an electronic database, Tascomi.
There is no record of staff consultation taking place.
ii. If searches included electronic data, which search terms were used and please explain whether the search included information held locally on personal computers used by key officials (including laptop computers) and on networked resources and emails.
All relevant data was recorded electronically. Data was entered using personal computers onto a file on the Tascomi database. Any relevant entry, such as a site inspection record can readily be viewed.
In this case the address was searched.
iii. Was any recorded information ever held relevant to the scope of the complainant’s request but deleted/destroyed?
No records were deleted or destroyed.
iv. Is there a business purpose for which the requested information should be held? If so what is this purpose?
Building Control Records are retained so that if defects should arise, the records may help us to understand how they arose and also if a complaint is made against Building Control, it can be properly considered. The records are held under the Building Control and the construction of buildings is subject to the Building Safety Act 2022.
It is a requirement to obtain planning consent from the Council under the 1990 Town and Country Planning Act. We are required retain planning applications and hold a publicly available planning register under the Development Management Procedure Order (2015 as Amended), which can be found here [link included].
v. Are there any statutory requirements upon the Council to retain the requested information?
The defects liability period set out in the Defective Premises Act was 6 years. The Building Safety Act 2022 made amendments to the Building Act 1984 and to several other pieces of legislation. The defects liability period is extended to 30 years for claims arising before 28/06/2022. This extended 30 year period would be relevant to works carried out on [address redacted]. It is likely that relevant data will be retained for in excess of 30 years.
vi. Is there information held that is similar to that requested and has the Council given appropriate advice and assistance to the applicant in line with the duty contained at regulation 9 of EIR?
No record is held where a requestor has asked for the full record of an application including details of inspection notes”.
FT/EA/2025/0107
The Appellant made the request (“the third request”) which is the subject of appeal reference FT/EA/2025/0107 (“the third appeal)” on 29 May 2024 in writing as follows:
“I Alan Tinling [address redacted] request under Freedom of Information the following:
All the recorded information including photos of Planning Enforcement Case:
Reference ENF/210871”.
The Council responded on 13 June 2024 in writing via email, providing the Appellant with fifteen document attachments. The Council explained that some of the documents had been redacted in line with Data Protection Regulations. On the same date, the Appellant contacted the Council to inform them that he could not open the attachments. The Council resent the documents via email on 18 June 2024.
The Appellant requested an internal review on 19 June 2024 on the basis that he was dissatisfied with the handling and response to his information request.
The Council responded on 22 July 2024 stating that the information had been disclosed to the Appellant via email, and that he had also been provided with instructions as to how to download the attachments. The information was resent to the Appellant and he was encouraged to follow the instructions that had been provided to him to access it.
On 23 July 2024 the Appellant made a complaint to the Commissioner stating that the Council had not given him all of the recorded information and that “the information I have received and the Internal Review response means the Council have blocked / concealed / hidden recorded information and photos I am legally entitled to”.
On 09 December 2024, as part of his investigation into the complaint, the Commissioner sent a list of questions to the Council and invited a response. The Council responded on 16 January 2025 as follows:
“1. What searches have been carried out to check if information was held within the scope of the request and why would these searches be likely to retrieve any relevant information?
Searches included the interrogation of records held in the planning enforcement:
All records are held electronically. The following areas store the records in question and have been checked:
Shared drive – Network of Microsoft files
Database – Tascomi is the name of the electronic database that the planning enforcement records are held and managed.
Planning enforcement inbox – (emails)
The Council Service has repeated the searches and identified that there are records which would be available to complainant under SAR. There were no additional records identified under EIR/FOI to be disclosed in the scope of the request.
2. Please describe thoroughly any searches of relevant paper/electronic records and include details of any staff consultations.
There are no paper files or records. All records are saved electronically only. The records are held electronically via the case reference / address / named person.
The planning enforcement manager repeated the [sic] and all the records have been checked.
3. If searches included electronic data, which search terms were used and please explain whether the search included information held locally on personal computers used by key officials (including laptop computers) and on networked resources and emails.
Searches were undertaken to the planning enforcement internal database – Tascomi, in which information is saved and stored. The search was done via the enforcement reference given in which it was also confirmed that the property stated matched what is on our system. Other searches included using names, email address and address, a secondary search was conducted in the planning enforcement inbox and shared drive. Multiple approaches were taken on Tascomi and emails, by reference number and addresses. The same approach was taken with the email inbox.
4. If no or inadequate searches were done at the time, please rectify this now and let me know what you have done.
Not applicable. Adequate and necessary searches were carried out and repeated we are satisfied that there are no additional records at this time for disclosure.
5. If the information were held would it be held as manual or electronic records?
As stated, all records were held electronically only as the Council does not hold manual records for the case reference that was requested.
6. Was any recorded information ever held relevant to the scope of the complainant’s request but deleted/destroyed?
No records were destroyed or deleted. The internal database – Tacomi allows for a user to check the ‘event log’ which would have shown that an item would have been deleted or destroyed. I can confirm that no records from Tascomi have been deleted or destroyed
7. If recorded information was held but is no longer held, when did the Council cease to retain this information?
There is no recorded saved information that was held but is no longer held.
8. Does the Council have a record of the document’s destruction?
Not applicable, no records have been destroyed/deleted from Tascomi.
9. What does the Council’s formal records management policy say about the retention and deletion of records of this type? If there is no relevant policy, can the Council describe the way in which it has handled comparable records of a similar age?
Records are to be kept can be kept from the date of the resolution of any enforcement action + 6 years.
The planning enforcement team is bound and guided by the Limitation Act 1980 – Councils may need to retain certain records for at least 6 years, as this is the limitation period for bringing most civil claims, including some enforcement-related disputes.
The majority of electronic information is recorded and stored on our database, as deemed necessary, to ensure effective case management and compliance with statutory and operational requirements. These records are maintained electronically and retained as long as they are considered relevant to ongoing operations, legal obligations, or historical reference.
10. If the information is electronic data which has been deleted, might copies have been made and held in other locations.
Not applicable, no records have been deleted.
11. Is there a business purpose for which the requested information should be held? If so what is this purpose?
Yes, to investigate reported alleged breaches of planning control. Local planning authorities have responsibility for investigating and where necessary, taking whatever enforcement action may be necessary, in the public interest, in their administrative areas in order to remedy a breach of planning control. In some cases we may have to retain information for prosecution cases.
12. Are there any statutory requirements upon the Council to retain the requested information?
Yes, there are statutory requirements and best practices regarding the retention of planning enforcement records. While there isn’t a single piece of legislation that dictates specific retention periods for all planning enforcement records, the following statutory and regulatory frameworks guide local authorities:
i. Councils are required to retain records related to enforcement actions, such as enforcement notices, breach of condition notices, and stop notices, to support legal compliance, appeals, and potential prosecutions.
Enforcement records may also serve as evidence in appeals to the Planning Inspectorate or in judicial reviews.
ii. Councils have a duty to make “proper arrangements” for the management of their records, which include planning enforcement files.
iii. Councils may need to retain certain records for at least 6 years, as this is the limitation period for bringing most civil claims, including some enforcement-related disputes.
iv. The General Data Protection Regulation (GDPR) and Data Protection Act 2018
Councils must ensure that personal data within planning enforcement records is retained only as long as necessary for the purposes for which it was collected. Once records are no longer required, they should be securely deleted or archived in compliance with data protection principles.
13. Is there information held that is similar to that requested and has the Council given appropriate advice and assistance to the applicant in line with the duty contained at regulation 9 of EIR?
There is no additional information in scope of the request under FOI or EIR but records are held for the requester that would be considered in the scope of a SAR for the requestor. We have written to the requester with a fresh response in accordance with regulation 5(1) of the EIR however, the information provided remains the same under FOI and EIR”.
On 15 January 2025, the Council issued a fresh response in relation to the third request in accordance with regulation 5(1) of the EIR. The information provided was identical to that which had been provided pursuant to the FOIA request which was made on 29 May 2024.
Decision notices
FT/EA/2024/0462
The Commissioner decided that, on the balance of probabilities, the Council did not hold any additional information within the scope of the request. He did not require any further steps to be taken.
In summary, the reasons for the Commissioner’s decision are:
The requested information is information that relates to a planning application. The requested information is therefore likely to be information on measures which are likely to affect the elements of the environment (regulation 2(1)(c) EIR) and he therefore assessed the case under the EIR;
The Commissioner had been advised that, on receipt of the request, the Council had conducted a search on Tascomi (their electronic database system) using the address details provided by the Appellant as the keyword for the search. All of the information that was located had been provided to the Appellant;
The Council had advised the Commissioner that any information held on the property in question would likely be required to be held for a period of thirty years or more. If any additional information had therefore been held, it would have been located during the search;
The Council had advised the Commissioner that, even though there were two separate planning applications for the property in question, it did not follow that there were two separate building control applications. In this case, both planning applications had been recorded under one building control application by the building control team;
The Commissioner restated his position that he was not required to decide whether the Council ought to hold specific information in such circumstances – he was only required to determine whether, on the balance of probabilities, any further information was held and whether adequate searches for the requested information had been conducted. He was satisfied that, had any additional information been held, it would have been identified from a search of Tascomi using the specific address as a search term.
FT/EA2024/0465
The Commissioner decided, on the balance of probabilities, that the Council did not hold further information within scope of the request.
In summary, the reasons for the Commissioner’s decision are:
For the same reasons as outlined in the first request, the Commissioner assessed the case under the EIR:
The Council had informed the Commissioner that all relevant data was recorded electronically on Tascomi and that there were no paper records. The Council had used the specific address of the property to search on Tascomi;
The Council had advised the Commissioner that no information had been destroyed or deleted, and that both their business and statutory purposes for retaining all information within the scope of the request meant that any relevant data that did exist would be retained for in excess of thirty years;
Based on the information provided by both the Data Protection Officer and the Head of Building Control, the Commissioner was satisfied that it is likely that the Council only held one building control record and that, based on the searches undertaken of the building control record, it is unlikely that the Council would hold any information within the scope of the Appellant’s complaint further than that which had already been provided;
The Commissioner recognised that, whilst the information that had been provided was not what the Appellant had expected, the information that had been provided did reasonably fall within the scope of the request;
The Commissioner was satisfied that the Council had responded to the request with the information that it held (albeit that that there had been a procedural breach in relation to the delay in responding).
FT/EA/2025/0107
The Commissioner decided that, on the balance of probabilities, the Council did not hold any additional information relevant to the request.
In summary, the reasons for the Commissioner’s decision are:
For the same reasons as outlined in the first request, the Commissioner assessed the case under the EIR:
The Council had informed the Commissioner that information relating to the request was held electronically. Searches of the planning enforcement internal database had been carried out using the enforcement reference provided by the Appellant. A secondary search of the planning enforcement inbox and shared drive had also been carried out. In addition, the Council had checked the ’event log’ and had confirmed that no deleted or destroyed records were found. Records would need to be kept for at least six years;
The Council advised the Commissioner that they were satisfied that there was no additional information held under the EIR or the Freedom of Information Act 2000 (“the FOIA”). The Council did identify further information about the Appellant which would be considered within the scope of a subject access request (SAR);
The Council confirmed that they had completed the same searches before providing their revised response under EIR;
The Commissioner confirmed that, during his investigation, he had contacted the Appellant to establish what information the Appellant believed that the Council held that had not been provided. The Appellant had explained that he believed that there should have been photographs of the height of the structure that had not been provided;
The Commissioner found that the representations provided by the Council sufficiently explained why it did not hold any further recorded information falling within the scope of the request. He found that, based on the evidence available to him, particularly the searches undertaken and the other explanations provide by the Council, he was satisfied on the balance of probabilities that the Council did not hold any further recorded information relevant to the request.
Grounds of Appeal
FT/EA/2024/0462
The Appellant appealed on 26 November 2024.
In summary, the Grounds of Appeal are:
The work on the rear infill extension commenced on 15 November 2021. The records provided by the Council pre-date the commencement date, and so are not valid for the rear infill extension;
The ICO should have ordered the Council to disclose the information contained under Building Control Record reference 2232/21/BN;
As the regulatory body, the ICO has failed to require the Council to demonstrate, evidenced by documents, that the foundations/excavation for the single storey rear infill extension are compliant;
The ICO has failed to act in respect of false representations;
The Council has failed to comply with a Decision Notice dated 30 August 2023, reference ICO-238272-R8V3.
The Appellant stated that he wanted an order to be substituted which compelled the Council to fully disclose all of the recorded information contained under Building Control record reference 2232/21/BN.
FT/EA/2024/0465
The Appellant appealed on 30 November 2024.
In summary, the Grounds of Appeal are:
The work on the rear infill extension commenced on 15 November 2021. The records provided by the Council pre-date the commencement date, and so are not valid for the rear infill extension;
The ICO should have ordered the Council to disclose the information contained under Building Control Record reference 2232/21/BN;
The ICO was fully aware of information made under the EIR and knew that the Council had failed to comply with their compliance obligations;
The ICO had failed to act on contradictory statements made by representatives of the Council which had been made to the Appellant;
The ICO were not acting transparently or fairly, and were not willing to order disclosure of the Building Control record, regardless of the necessity of doing so in this case.
The Appellant stated that he wanted an order to be substituted which compelled the Council to fully disclose all of the recorded information contained under Building Control record reference 2232/21/BN, including full disclosure of the building notice with the same reference number.
FT/EA/2025/0107
The Appellant appealed on 04 March 2025.
In summary, the Grounds of Appeal are:
There have been failures in the Commissioner’s investigation. The Commissioner was not being transparent and had made his decision to avoid the adverse disclosure of the requested information;
The Council has not disclosed all of the requested information and is “unlawfully withholding environmental information requested”. In particular, information from various site visits to the specific property had not been disclosed, and the Commissioner had failed to take steps against the Council for not doing so;
The Commissioner has failed to act on the information provided to him that had already been redacted;
The “unlawful withholding of Environmental Information by Council – has unlawfully been sanctioned by the Commissioner”.
The responses of the Commissioner
FT/EA/2024/0462
The Commissioner’s response, dated 24 January 2025, maintains that the Decision Notice was correct. The Commissioner stated that he had asked appropriate questions of the Council during his investigation and that he was satisfied with the Council’s explanation as to why further information to that which was already disclosed was not held. He stated that he was entitled to accept the responses of the public authority at face value unless there was some reason why he ought not to do so, and he did not identify any such reason in this case. He stated that it was not his role to address the completeness and accuracy of the information disclosed. The Commissioner was satisfied that he had applied the correct test and explained his reasoning for his conclusions in the Decision Notice.
The Commissioner asserted that it was not a valid ground of appeal, to the extent that it was asserted, for the Appellant to challenge how the Commissioner investigated the matter.
The Commissioner also stated that the Decision Notice reference ICO-238272-R8V3 did not fall within the scope of the appeal and was therefore not within the Tribunal’s jurisdiction to consider.
FT/EA/2024/0465
The Commissioner’s response, dated 30 January 2025, maintains that the Decision Notice was correct. The Commissioner noted that, whilst the Appellant had stated as part of his grounds of appeal that the Commissioner should have made an order for disclosure of the Building Control record reference 2232/21/BN, this had not been requested as part of the Appellant’s second request and was therefore outside of the scope of the Commissioner’s investigation.
The Commissioner stated that he had asked appropriate questions of the Council, to which the Council had responded on 15 October 2024 by detailing the searches that had been conducted to identify the relevant information. The Commissioner was satisfied that the searches conducted by the Council are likely to have identified all of the information held relevant to the request.
The Commissioner stated that he was entitled to accept the responses of the Council at face value, where there was no evidence of an attempt to mislead the Commissioner or of a motive to withhold information.
The Commissioner maintained that he is unable to determine the completeness and accuracy of the information disclosed or to look into other allegations of misconduct or maladministration.
Whilst the Appellant considered that he had received contradictory statements from Council staff, the Commissioner does not consider that this equates to evidence of the prevention of disclosure to information that he may be entitled to and, by inference, does not therefore engage section 77 FOIA or regulation 19 EIR.
The Commissioner refutes any suggestion by the Appellant that he has not acted transparently and fairly.
FT/EA/2025/0107
The Commissioner’s response, dated 07 April 2025, maintains that the Decision Notice was correct. He asserts that the way in which he conducts his investigations are outside the scope of the Tribunal’s jurisdiction.
The Commissioner remained satisfied that the Council have co-operated fully with the investigation and complied with its obligations under the EIR. The Commissioner had asked appropriate questions of the Council as part of his investigation and had been provided with details of the searches that had been carried out by the Council. He remained satisfied that the searches conducted by the Council are likely to have identified all of the information held relevant to the request, and that the information provided by them sufficiently explained why the Council did not hold any further recorded information within the scope of the request.
The Commissioner stated that he could see no reason why the Council would benefit from allegedly dishonestly informing the Commissioner about the searches that it had conducted and the information found, and he had not seen any information to indicate that this had occurred.
The Commissioner concluded by stating that the Appellant had not provided any new evidence which would suggest that, on the balance of probabilities, information falling within the scope of the request was held by the Council.
The Second Respondent’s responses
FT/EA/2024/0462
In its response dated 24 January 2024, the Second Respondent resists the appeal on the basis that it has disclosed all information held which relates to the first request.
In its response, the Council disputed that the work on the specific property commenced on 15 November 2021, as the foundations had been witnessed on 07 October 2021.
The Council noted that the outcome sought by the Appellant, namely the disclosure of all the recorded information contained under Building Control notice reference 2232/21/BN, was not consistent with the request that had been made to the Council and which was the subject of the first Decision Notice. Notwithstanding that fact, the Council had already received and responded to a request from the Appellant relating directly to that information.
FT/EA/2024/0465
In its response dated 24 January 2024, the Second Respondent resists the appeal on the basis that it has disclosed all information held which relates to the second request. The substance of the response mirrored the response that was provided to the first request.
FT/EA/2025/0107
In its response dated 07 April 2025, the Second Respondent resists the appeal on the basis that it has disclosed all information held which relates to the third request.
The Council accepts that other site visits had taken place to the specific address, but maintained that details of those visits were not contained on the enforcement file when searches were undertaken in response to the third request. It maintained that it had not withheld information falling under the scope of the third request, other than personal data which had been clearly redacted.
The Council expressly denied that it had breached legislation and/or was concealing recorded documents/information, or that it had failed to comply with regulation 9 of the EIR.
The Council asserts that the remedy sought by the Appellant, namely that the information and documents that corroborate the statements made in Waltham Forest Stage 1 and 2 complaints of 2022, are also disclosed is not an order that the Tribunal should make in response to the appeal.
The Appellant’s replies to the Commissioner’s responses
FT/EA/2024/0462
In his reply dated 08 February 2025, the Appellant maintained that the Commissioner was not being transparent or impartial, and had failed to apply the relevant test of the balance of probabilities. He stated that the Commissioner’s exercise of his discretionary powers should have been different. He referred to the Council having “a serious motive to mislead and withhold evidence”. He stated that “The Commissioner has knowledge that the responses of the Council are not truthful and are misleading in respect of the single storey rear infill extension. The Commissioner to avoid adverse disclosure and my appeal being uphold – has provided a perverse Decision Notice”. He asserted that both the Council and the Commissioner were actively misleading the Tribunal.
FT/EA/2024/0465
In his reply dated 13 February 2025, the Appellant asserted that the Commissioner was not being transparent and had a rigid/restrictive policy of non-disclosure of Building Control records. He stated that the Commissioner’s exercise of his discretionary powers risked/failed to uphold protection rights afforded by the law. He stated that the Commissioner was misleading the Tribunal, and that the Commissioner had received answers from the Council which the Commissioner knew to be false. He stated that the Commissioner had failed to act in relation to false representations that he asserted had been made by the Council. The Appellant asserted that the contradictory statements made by the Council were evidence of false representations and were an attempt by the Council to avoid disclosure of the requested information in relation to the single storey rear infill extension. He stated that he was making a “formal request for this complaint to be investigated as section 77/regulation 19 offences complaint”.
FT/EA/2025/0107
In his reply dated 22 April 2025, the Appellant stated that the Commissioner should have exercised his discretion differently “knowing my complaint is that the Council is withholding the information because of adverse disclosure and its consequences for the London Borough of Waltham Forest and its relevant individuals”. He stated that the Commissioner had failed to uphold the right of access to personal data by requiring the Council to deal with the request pursuant to the EIR rather than FOIA. He asserted that there were multiple failings/breaches in relation to statutory provisions about the retention of records by Public Authorities. He concluded by stating that the Council had not disclosed all of the information that it held within the scope of his request.
The Appellant’s replies to the Second Respondent’s Responses
FT/EA/2024/0462
In his reply dated 08 February 2025, the Appellant maintained that the records that he had been provided with pursuant to his request did not relate to the single storey rear infill extension, and he relied on the reasons given in his Notice of Appeal.
FT/EA/2024/0465
In his reply dated 13 February 2025, the Appellant asserted that the Council was misleading the Tribunal by withholding environmental information unlawfully “by use” of the UK GDPR and that the Commissioner was sanctioning this conduct. He reiterated that he had not been provided with all of the requested information that he had sought in his second request.
FT/EA/2025/0107
In his reply dated 22 April 2025, the Appellant asserted that he had not been provided with any statement informing him of the exemptions that had been applied to the response provided to him on the basis of personal data/UK GDPR. He stated that the Commissioner had not been transparent or impartial in the making of his Decision Notice as the Commissioner knew that information was held within the scope of his request which had not been provided.
Legal Framework
Regulation 2(1) of the Environmental Information Regulations (“EIR”) defines “environmental information” as:
“…any information in written, visual, aural, electronic or any other material form on -
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components... and interaction among these elements;
(b) …
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;
(d) …
(e) …
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c)”.
It is not disputed by any of the parties that the requested information in each of the three requests is information on the elements of the environment and that the appropriate means of access was pursuant to the EIR in each case.
Regulation 5(1) EIR provides:
“Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations, a public authority that holds environmental information shall make it available on request.”
Regulation 12 EIR provides:
“(1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if—
(a) an exception to disclosure applies under paragraphs (4) or (5); and
(b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information”.
A public authority shall apply a presumption in favour of disclosure.
…
For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that –
it does not hold that information when an applicant’s request is received”.
Whether a public authority holds material is a question of fact to be determined on the balance of probabilities (Linda Bromley v the Information Commissioner and the Environment Agency (EA/2006/0072; 31 August 2007, as approved in Andrew Preston v the Information Commissioner and the Chief Constable of West Yorkshire Police [2022] UKUT 344 (AAC)). The First-tier Tribunal held that in determining a dispute as to whether information is ‘held’:
“There can seldom be absolute certainty that information relevant to a request does not remain undiscovered somewhere within a public authority's records. This is particularly the case with a large national organisation like the Environment Agency, whose records are inevitably spread across a number of departments in different locations. The Environment Agency properly conceded that it could not be certain that it holds no more information. However, it argued (and was supported in the argument by the Information Commissioner) that the test to be applied was not certainty but the balance of probabilities. This is the normal standard of proof and clearly applies to Appeals before this Tribunal in which the Information Commissioner's findings of fact are reviewed. We think that its application requires us to consider a number of factors including the quality of the public authority's initial analysis of the request, the scope of the search that it decided to make on the basis of that analysis and the rigour and efficiency with which the search was then conducted. Other matters may affect our assessment at each stage, including, for example, the discovery of materials elsewhere whose existence or content point to the existence of further information within the public authority which had not been brought to light. Our task is to decide, on the basis of our review of all of these factors, whether the public authority is likely to be holding relevant information beyond that which has already been disclosed”.
The Upper Tribunal in Andrew Preston v the Information Commissioner and the Chief Constable of West Yorkshire Police also noted that, importantly, in Councillor Jeremy Clyne v the Information Commissioner and London Borough of Lambeth (EA/2011/0190) the Tribunal held that the ‘issue for the Tribunal is not what should have been recorded and retained but what was recorded and retained’. The Tribunal was satisfied that a gap in the public authority’s documentary records reflected ‘inconsistent and poor administrative practice’ but this did not amount to a breach of FOIA.
Whilst the above cases related to FOIA the considerations are nonetheless equally applicable to the EIR.
The powers of the Tribunal in determining this appeal are set out in section 58 FOIA as follows:
“(1) If on an appeal under section 57 the Tribunal considers –
(a) that the notice against which the appeal is brought is not in accordance with the law, or
(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,
the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.
(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based”.
Regulation 18 of the EIR confirms that the appeal provisions of FOIA (Part V) apply for the purposes of the EIR, subject to the modifications as set out in regulation 18.
The role of the Tribunal
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 an exercise of his discretion, whether he ought to 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.
Issue
The issue for the Tribunal to determine, in relation to each of the three requests separately, is whether the Commissioner was correct in holding, on the balance of probabilities, that the Council did not hold any relevant information within the scope of the request, save for that which was disclosed, at the time that the request was made.
Assessing the scope of the Commissioner’s investigation and conduct is not within the jurisdiction of the Tribunal.
Evidence
We read and took account of the following documents:
An open bundle relating to the first request comprising of 325 pages;
An open bundle relating to the second request comprising of 364 pages;
An open bundle relating to the third request comprising of 762 pages;
A witness statement from Heidi Balci dated 31 March 2025 and a second witness statement from Heidi Balci dated 13 May 2025;
A skeleton argument on behalf of the Second Respondent, dated 30 June 2025; and
A bundle of legal materials on behalf of the Second Respondent.
We also heard oral evidence on oath from Ms Heidi Balci and oral submissions on behalf of the Appellant and the Second Respondent.
Discussions and conclusions
FT/EA/2024/0462
The first request is limited in scope to three specific requests relating to the planning application reference XXXX14. In its response to the Appellant on 22 February 2024, the Council (i) stated that, if held, the information would be contained in the Council’s Building Control file, and that the Building Control file that was held contained information in relation to two planning requests, including XXXX14, which had been disclosed; (ii) provided the information requested in relation to the foundation depths; and (iii) provided a cogent explanation as to why information sought in the other two parts of the request was not available.
The Council confirmed that it had searched its planning database ‘Tascomi’ for any further information in-scope. The database contains “all relevant material such as drawings, specification, calculations, site inspection records and correspondence”. The Tribunal are satisfied that, if any additional information was held by the Council, it would have been located on the database.
It is accepted by the Council that at least one additional site visit to the specific property did take place, but that there is no record held of that visit. Ms Heidi Balci provided an explanation that information about a further site visit may have been provided to Ms Julia Morris verbally, potentially on a Teams call, by two site inspection officers, who had both now left the employment of the Council. As such, whilst records of the site visit should have been uploaded to the planning enforcement file, that had not in fact happened. The Tribunal is not concerned with the adequacy or otherwise of the record-keeping by the Council, but rather solely with the issue as to whether any further information that is in-scope was held by the Council at the time of the request. We accept the evidence of Ms Heidi Balci as to why additional records of a site visit(s) are not available.
In her oral evidence, Ms Heidi Balci outlined the additional efforts that had been made to determine whether data held on the personal or work laptops and mobile phones of former employees could be recovered, but it was confirmed that, even if it had existed, it would have been deleted shortly after an employee left the Council. She also confirmed that a search had been conducted of the mailbox of Ms Julia Morris, to whom any information would have been sent by the site inspectors, and no relevant information had been found.
The Tribunal accepts the Commissioner’s submissions that he had asked appropriate questions of the Council during his investigation and that he was satisfied with the Council’s explanation as to why further information to that which was already disclosed was not held. We do not identify any reason in this case as to why the Commissioner was not entitled to accept the responses of the public authority at face value.
In addition, the Tribunal does not find any evidence to support the assertion that the Council and/or the Commissioner are deliberately misleading the Tribunal. The Tribunal also does not find any evidence to suggest that either the Commissioner or the Council have deliberately destroyed, fabricated, or altered any documents.
For completeness, the Tribunal agrees with the Commissioner’s submissions that Decision Notice reference ICO-238272-R8V3 does not fall within the scope of the appeal and is therefore not within the Tribunal’s jurisdiction to consider. We also agree that the remedy sought by the Appellant, namely the provision of all of the information contained in Building Control record reference 2232/21/BN is a much wider request that that which was contained in the first request and is therefore not a remedy that could be granted in any event.
The Tribunal are satisfied that, in relation to the first request, the Commissioner was correct to conclude, on the balance of probabilities, that the Council did not hold any further information within the scope of the request at the time that the request was made.
FT/EA/2024/0465
The second request is also very limited and specific in its scope. The three questions raised were specifically responded to, in turn, in the response from the Council dated 27 June 2023. The Tribunal agrees with the observation of the Commissioner that, whilst the information that had been provided was not what the Appellant had expected, the information that had been provided did reasonably fall within the scope of the request.
The Tribunal accepts that there is no reason to believe that additional information is held by the Council in relation to this request. The Tribunal refers to the conclusions reached at paragraphs 90-94 above which are of equal applicability to their consideration in relation to the second request.
The Tribunal are satisfied that, in relation to the second request, the Commissioner was correct to conclude, on the balance of probabilities, that the Council did not hold any further information within the scope of the request at the time that the request was made.
FT/EA/2025/0107
The third request relates to a specified Planning Enforcement case. In response, a total of fifteen documents were provided to the Appellant. The documents contained redactions in relation to personal data in accordance with regulation 12(3) EIR. In her statement, Ms Heidi Balci confirmed that the response contained all of the information regarding the Planning Enforcement case and had been obtained from both a search of the enforcement file and also a search of the generic relevant mailbox.
As with the previous requests, it is accepted by the Council that at least one further site visit took place, for which there is no record. Ms Heidi Balci has provided evidence as to why such information was not recorded, and of the efforts that were made to retrieve information that may have been held by now ex-employees of the Council. Whilst the absence of records is regrettable, we find no evidence to suggest that the information has been deliberately concealed or altered.
The Appellant asserts that the Council and Commissioner are working together to refuse access to the relevant documents as the building extension is unsafe. We find no evidence at all to support that assertion.
The Tribunal accepts the Commissioner’s conclusion that he asked appropriate questions of the Council as part of his investigation and had been provided with details of the searches that had been carried out by the Council. The Tribunal also accepts his conclusion that he remained satisfied that the searches conducted by the Council are likely to have identified all of the information held relevant to the request, and that the information provided by them sufficiently explained why the Council did not hold any further recorded information within the scope of the request.
The Tribunal is satisfied that the Council has provided all information that it holds relating to the Planning Enforcement file to the Appellant.
The Tribunal are satisfied that, in relation to the third request, the Commissioner was correct to conclude, on the balance of probabilities, that the Council did not hold any further information within the scope of the request at the time that the request was made.
Public interest test
As with all EIR exceptions, the operation of regulation 12(4)(a) is subject to the public interest test outlined in regulation 12(1)(b) EIR. In addition, regulation 12(2) EIR requires that, in all cases under the EIR, a presumption in favour of disclosure should be applied. However, given that no information is held, it is impracticable to meaningfully apply the provisions of either regulation 12(1)(b) or regulation 12(2) in relation to any of the three linked appeals.
Conclusion
The Tribunal dismisses each of the three linked appeals for the reasons given above.
Signed: Judge Shenaz Muzaffer
Dated: 18 July 2025