ICO review of FOI/36 request
Response received 4th October 2017
Information Commissioner’s Office summary – The complainant requested information from Sheffield City Council (the Council) relating to the location of trees that had been selected by a Council contractor for the implementation of flexible paving. The Council denied holding any relevant information. The Commissioner investigated the complainant’s appeal and found that the information was held on behalf of the Council by one of its contractors. The Council confirmed that its revised response was that the request was manifestly unreasonable as per regulation 12(4)(b) of the EIR, and that the balance of the public interest favoured maintaining the exception. The complainant confirmed he wished to appeal against this refusal of his request. The Commissioner’s decision is that the Council incorrectly refused the request as manifestly unreasonable. The Commissioner requires the public authority to provide the complainant with the requested information.
FoI request submitted by Chris Williams
“Re: Freedom of Information Request – Reference FOI/790
Thank you for your recent request for information regarding Legal Costs – Sheffield Tree Protestors, which we received on 23rd August 2017.
Please find below, Sheffield City Council’s response to your request:
Officer time (other than officers from Legal Services) is not recorded or, to the limited extent it is recorded, is not recorded in such a way as to enable time spent on this action to be distinguished from time on other related matters.
In terms of Legal Services time please see the details below in terms of costs associated with work undertaken by fee earners. We do not have a record of the actual cost of this time to the Council. However, for internal accounting purposes this time would be recharged at the rate detailed below. Please note that cost awards in court are at the discretion of the Judge and calculated according to rates fixed by the court and will not therefore be based on our internal charging rates. Furthermore we note that the recharge figure includes time recorded after the hearing but which are considered part of the overall cost to the council associated with the injunction.
Internal recharge from legal services to other departments (as of 22nd August 2017) for injunction:
£24,736.39 (475.1 combined officer hours)
External costs (as of 22nd August 2017) for injunction:
Counsel’s fees: £94005.70 (£112780.24 inc VAT)
Process server and investigations: £12634.75
Court fee: £783.00″
Chris writes: “…the cost was £150,934.38 – needless to say this is not an inconsiderable cost, and now is an undercount.”
Note: the above figure does not include the costs of pursuing the court case against the three defendants alleged to have broken the terms of the Injunction. In this case the barrister appearing for SCC stated that the Council’s costs in bringing 23rd October’s action were £64,000 and for 30th October’s action they were nearly £32,000.
FoI request submitted by Susan Unwin
Freedom of Information Request – Reference – FOI /3766
- Original questions are in grey text
- The Council response is in green text
- Susan’s comments are in orange text
The advice given by the Independent Tree Panel on the Vernon Road oak tree was published on SCC’s website last month. In their letter dated 16 May 2016 the Panel state that “…it would be possible to substantially mitigate the disruption to the pavement and kerb, in such a way as to allow adequate passage of pedestrians, including those with buggies or using wheelchairs, for example using solutions 1,2,3,4,5 and 10. There is a fully accessible pavement on the opposite side of the road, and several accessible kerbs close by. We recognise that these solutions would result in the line of the kerb being interrupted by the trunk. We have written separately to you about the Council’s policy regarding this issue”.
Please confirm details of the ITP correspondence referred to in the previous sentence including when it was written and what it said and further confirm the Council’s policy regarding a kerb line being interrupted by the trunk?
SCC’s reply came with an incorrect PDF attachment for Ashfurlong Close not Vernon Road.
SCC: The letter published on the Council’s website on 16 May 2016 does not state “We have written separately to you about the Council’s policy regarding this issue” (please find this letter attached in PDF format). We therefore do not hold the information requested.
I informed the Council that they had attached the wrong PDF and requested that they answer the original request.
SCC also stated: Sheffield City Council has a number of suggested treatments where the kerb line is displaced, such as the use of thinner profile kerbs or use of dropped kerbs. It does not have a specific policy for kerb lines being interrupted by the trunk of trees, although if the stem of a tree is physically within the carriageway then existing Highways Act legislation would provide the appropriate legal standpoint on how the Authority should deal with this scenario. As such a separate, standalone policy is not required.
The response to Susan’s request for an internal review
From the Council’s Information Management Officer:
Initially please accept my apologies for the protracted delay to your request for internal review. The Council does endeavour to provide a response to internal reviews with 20 working days, however upon occasion a review can be delayed as has occurred with this response. Unfortunately due to a number of factors we have been significantly delayed in providing responses to internal reviews.
During my review of your request I have considered the Council’s approach to your initial request, our disclosure and the wider information held by the Council.
In this particular case it appears that your initial request was cross-referenced with the the wrong correspondence from the ITP. The officer dealing with your request having unfortunately provided a copy of a letter about Ashfurlong Road (of the same date as your request) and reviewed the specific Vernon Road letter which was the subject of your request. As a result our response was incorrect in this instance due to the confusion about the letter which you were requesting information about. I am sorry that on this occasion the error was not picked up in prior to the response being provided. In this case due to the letters being of the same date the response was not challenged and checked in reference to the specific wording of your request. I apologise on behalf of the Council that this was not identified initially and this has led to a delay in the receipt of the attached information.
As a result I have sourced what I believe to be the current document subject to your request; namely the letter of the 16th May 2016 from the ITP in regard to kerbs. We are of the understanding that this is the letter referred to by the ITP in their letter regarding Vernon Road.
Review Decision – Conclusion
Taking the above into account, I have identified the error in the handling of your initial FOI request and provided what I consider to the correct information under this review. I hope this information assists when your enquiries.
If you are dissatisfied with the outcome of your internal review, you are entitled to contact the Information Commissioner’s Office and they will consider whether your complaint is eligible for further review. The Information Commissioner’s details and guidance is available on the website at http://www.ico.org.uk
I have asked and am still waiting for an answer for “what was SCC’s response to the questions raised by the ITP?”
FoI request submitted by Paul Brooke
Paul’s FoI request was received by Sheffield City Council on 5th March 2017. Their initial response was to refuse his request, citing reasons such as commercial interest or not holding the relevant records.
This letter, received on 23rd August 2017, follows Paul’s request for a review into the late response to his original FoI request. After registering his complaint with the Information Commissioner’s Office, the Council were given a further 20 days to respond.
Paul’s original questions are included in the letter; the red text was later added by him for the purpose of the review request.
This was then followed up with the email below, sent to Councillor Lodge on 31st August 2017 – a response is eagerly anticipated.
“Dear Cllr. Lodge
On the 3rd of March I asked you a question in Chamber as recorded in the official record below. I have highlighted sections in bold.
Paul Brooke asked a question with regard to the assertion that there were financial costs to the Council as a result of campaigners delaying tree felling. He referred to a clause in the Streets Ahead contract which said that the Council would not be responsible for any protester or financial loss caused by them. He asked for an explanation of how the protests were causing additional costs to the Council.
Councillor Bryan Lodge, the Cabinet Member for Environment, responded to the questions. He stated that there was a clause in the Streets Ahead contract which said that Amey was responsible. However, there was also a clause which stated that if the delay was due to factors outside of Amey‟s control, for example, injunctions; protests, which prevented them carrying on with work; court cases; or the setting up of the Independent Tree Panel, then there was a cost to such activity and that cost came back to the Council. The costs did not impact on Amey’s profits. The contract was specific and complex.
Both the current Labour administration and the former Liberal Democrat administration of the Council were involved in putting the contract together. The delays had resulted in costs to the Council because of the months of time lost, which had prevented the resurfacing and repair of 75km of pavements and 6km of road from being repaired and brought back up to standard. He said that it was anticipated that the costs to the Council would run into millions. That included court costs; the use of additional crews to attempt to catch up and rescheduling work. This was a cost to the Council Tax payers in the City and it was hard to accept.
I would like to draw your attention to the attached Freedom of Information Act review that it has taken me months to obtain.
You will note that this shows your replies in Chamber on the 3rd of March to be sufficiently inaccurate so as to be misleading to the Council. It is evident that whilst there are significant costs to the Council with regards to the programme of tree felling, these are not attributable to the direct actions of protestors as you have claimed both in the Chamber and in the press on repeated occasions.
I am writing to you to ask whether you will be formally correcting your statement to Chamber.
I would also like to ask for an apology for misleading me in direct answer to my question. As a member of the public I am entitled to ask my representatives questions and would expect to get accurate responses. I have spent a significant amount of time trying to find the ‘clause’ you claimed resulted in the cost of protest actions falling to the Council only now to find that the Council’s press department is engaged on telling the public that you will resist (due to the wording of the Council) any attempt by AMEY to pass on the costs of protests. Which, is the very reason I asked you the question.
FoI requests submitted by Paul Selby
Paul is a fully qualified Government Analyst, with an MSc in Economics, who answers FoI questions in his day job.
- Original questions are in grey text
- The Council response is in green text
- Paul’s comments and conclusions are in orange text
January 2017 –
Question Set A
Regarding the Chelsea Road elm tree, the latest price for saving the tree quoted to me by Cllr Bryan Lodge was £40,000 when I met him September.
- Can you break this £40,000 cost down into is component elements?
The £40,000 figure is not correct. The budget estimates for the installation of a platform across the junction are given below:-
- Works costs £29,000
- Traffic management £8,500
- Allowance for additional work to statutory undertakers equipment £7,500
- Road Safety audits, public consultation, stakeholder consultation, advertising £5,000
- Estimated total £49,000 which excludes a contingency that would normally be 10% (£4,900)
So, after the two Julie Dore quotes of £100,000 and £75,000, then Bryan Lodge’s costs of £50,000 then £40,000, we have a new total cost of £55,000. (Note: The breakdown of costs adds up to £50,000, not £49,000, the Council can’t add up!!!) And these costs don’t include the “commuted costs” which Amey and Bryan Lodge have talked to me about verbally – commuted costs are the costs of maintaining the bespoke non-standard solution over the remaining 25 years of the contract. In terms of the quote we got from the independent engineer of between £1550 and £3550, the comparable cost above is the £29,000 cost of works. So Amey are charging the council between 8 times and 19 times the real cost of the works. That’s the benefits to Amey of their 25 year PFI monopoly!
- Cllr Lodge led me to believe that the £40,000 of costs included an estimate of the future costs Amey will incur as a result of the tree not being felled. Can you provide a detailed explanation of how these were calculated?
See answer to previous question
Question Set B
Regarding the Streets Ahead contract with Amey:
- Can you provide a list of all the performance targets (and/or Key Performance Indicators) that Sheffield Council uses to monitor Amey and hold them to account?
Performance information can be found on the Council web site at https://www.sheffield.gov.uk/business-economy/contracts/scc/major-contracts.html. As this information is accessible by other means it is exempt from disclosure under Section 21(1) of the Freedom of Information Act 2000.
The council haven’t actually answered my question here. The link to takes you to a page, which if you scroll down, takes you to a link to a Word document. On page 10 of the Word document are a list of high level categories for the targets, but not the specific measures and timescales. I will ask for a review of their response as a result
- Can you provide the latest performance data for each of the performance targets (and/or Key Performance Indicators)?
See answer to previous question
- Can you explain the consequences for Amey if they fail to meet one or more of the performance targets or Key Performance Indicators? For example, are there financial penalties that they have to pay, and what financial value are these penalties?
Where the Performance Requirements of the contract are not met there are financial deductions made. The Council does not publish the value of deductions.
This is obviously what we expected, but because the answer to question 1 of this section is not a fully transparent answer, we aren’t yet where we need to be in terms of targeting our activities on Amey.
Question Set C
Regarding the Streets Ahead contract with Amey, I have done a detailed analysis of the 172 street trees in Nether Edge and Sharrow that are currently listed for felling as part of the Streets Ahead street tree replacement programme. For 44% of these 172 trees, I can find no evidence of roots or trunks encroaching into the road, but these trees have been listed for felling as Amey has classed them as “damaging.” From what I can tell, they have been classed this way because these trees have pushed the kerbstone out slightly. In my view, the tree can be saved by either putting back the existing kerbstone or using a new narrower kerbstone.
- Can you tell me whether the use of narrow kerbstones is allowed as part of the standard pricing within the contract with Amey?
Yes, it is included in the current contract and is one of our 25 Engineering Solutions 14 of which are included in the contract. This method has been used during the work to date but it often is only a temporary measure as can clearly be seen along Sheldon Road for example, where many narrow edging kerbs have subsequently been displaced. Narrow kerbs or kerb edgings are only slightly less problematic than a regular sized kerb due to the bedding required so the saving is only in the width.
This answer is interesting as it rules out one of my suspicions about the contract. So narrow kerbs are allowed and free within the contract. My question is therefore why aren’t they being used more?
- If not, what is the extra price, and how has it been calculated?
See answer to previous question
Question Set D
Regarding the Streets Ahead contract with Amey,
- When replacing the road surface, Amey use a highly efficient machine that I believe is called a “Road Planer” to scrape away the old road surface. Could you tell me if I’m right in thinking Road Planer can only be used when the road width is even and has nothing like tree roots or tree trunks sticking into road?
Road planers are standard highway maintenance machines used across the world to remove bituminous materials and can work on variable width roads, variable removal depths and in all road conditions. It should be noted that there a few occasions where roots have been found in the road surface.
This is another example where my suspicions relating to the PFI contract have been ruled out. So there is no reason why the Road Planer can’t be used when a tree root is sticking into the road.
- What are the consequences of Amey not being able to use the “road planer?” For example, do they have to remove the old surface manually?
If a road planer is not practicable, it is sometimes possible to use other machinery, such as a JCB with a pneumatic breaker attachment, or failing that, undertake localised hand digging. Whilst other removal methods are available but there remains the question of whether road surfacing materials is possible with the roots in situ and that has considerations such as the temperature of the bituminous materials
Similarly, even when the Road Planer can’t be used, other removal methods are available.
- If so, do Amey charge Sheffield Council extra money for this manual work, and what is the financial value?
There are no additional costs incurred by the Council if Amey encounter difficulties in construction or excavation of material
And most importantly, there are no extra costs to the council for manual digging. In which case, this rules out the road planning issue as the reason for felling so many trees.
Question Set E
Regarding the Streets Ahead contract with Amey,
- From what I have been told verbally, the 25 year contract with Amey allows for them to replace between 50% and 75% of all Sheffield’s street trees over the life of the contract. Could you tell me if this is a target that Sheffield Council have set Amey, or is it just a guideline?
As part of the complex bidding process for the PFI contract bidders needed to make an adequate allowance in their financial model to cover the potential scale of highway maintenance that could be required. The tree risk allowance was based on an independent inspection that classified 75% of the tree stock to be mature or over mature. Whilst there may be a financial allowance, all tree replacement decisions are made by the Council and there is no target based approach being used by either Amey or the Council. We provided estimates of numbers of trees requiring replacement in our High Court submissions. Broadly we expect to have to replace between 5,000 and 6,000 trees in the Core Investment Period (ie the first five years of the contract) and can guess that around 200 trees per year will die or be damaged (for example, we had 23 trees blown over on the evening of 10 January 2017) each year for the remaining 20 years of the contract making totals of between 9,000 and 10,000 trees
This is a bit of an opaque answer, but I believe is the “smoking gun” we have been waiting for. It says that the 75% figure was used in the risk allowance model, but that there is no target, and that the expectation is for around 5000 to 6000 trees to be felled in the five year investment period. Reading between the lines, this suggests that the Amey bid for the PFI contract included an analytical model which somehow used the 75% figure to output an estimate of 5000-6000 trees being felled in the first five years, and that this is what the Council signed off in terms of the contract. Okay, their answer suggests there is no formal council set target, and that the final decisions are made by the Council on which individual trees to fell. But Amey will be making their initial assessments of which trees to fell based on their own internal target of aiming to fell 6000 trees. With the lack of any tree experts left in the Council, Amey experts will have the advantage with their assessments of which trees to fell. Whether the Council believe Amey because they’ve been bamboozled, or are working underhandedly on the side of Amey, we don’t know. I suspect the former, with the Council simply not having the expertise to question Amey. Either way, this is the key information we need. Amey have an internal target which is based on their own model used in their original bid, and which all their financial calculations are based on. They need to fell 6000 trees to meet their internal financial costings, even if the Council never set an explicit target in the contract itself.
- I have been told that the 25 year contract has got a so called “investment period” covering the first five years of the contract. Have Sheffield Council and Amey agreed a target number of trees they need to fell in this first five years of the target, and if so, what is that number?
The first five years of the contract is the Core Investment Period and over that time the City’s highways will be brought up to a good standard. There is no target for replacing trees in the Core Investment Period.
As per the previous question, the Council are probably right to say they didn’t set Amey a target, but Amey will have their own internal target.
- Cllr Bryan Lodge told me that there are financial consequences for Sheffield Council if the trees identified for felling were not felled and replaced by the end of the 2017/2018 “planting season.” Could you tell me what those financial consequences are? (ie How much will Amey charge Sheffield Council?)
All the works necessary to bring the City’s highways up to a good standard have to be completed within the Core Investment Period and that is part of the agreement with lenders. There are financial penalties on the Council should Amey not be able to complete the core investment works as agreed and the value of the penalties will depend on the circumstances but in any event they will be significant and unaffordable for the Council.
Finally, we have this written down, not just verbally. The Council will be penalised financially if they prevent Amey from completing their agreed work on time.
- Could you explain why Amey are able to charge Sheffield Council for not felling the identified trees by the end of the 2017/2018 “planting season?” Is it because Sheffield Council are the ones to have caused the delay by setting up the Independent Tree Panel, which wasn’t part of the process when the 25 year contract was signed in 2012?
Any processes that the Council has introduced that are outside the scope of the contract and that lead to delays in the core investment programme will mean the Council is responsible for costs that flow from them.
And even more detail here. Explicit admission that the setting up of the ITP process was not envisaged when the PFI contract was originally signed. The ITP process has caused significant delay to Amey’s ability to relay road surfaces and pavements in full, and so the Council are on the hook financially, if the identified trees are not felled and replaced before the end of the five year investment period.
Question Set F
Regarding the documentation that was published showing Independent Tree Panel (ITP) advice, and the Sheffield Council responses,
- The ITP make clear and specific recommendations for saving some of the trees. For example, they suggest using “Solutions 5, 8, 10 and 12” for one tree. From the various documentation I have read, the first 14 solutions are “free” as part of the 25 year contract, is that correct?
That is correct of the 25 Engineering solutions 14 are included in the scope of the highway maintenance contract
Good to have this absolutely confirmed in writing
- In the documentation, the Sheffield Council response for nearly all the trees that the ITP make a suggestion of using one of the “free” solutions is the following: “After a review of the costs of building engineering solutions to retain trees that involve changes to the highway on a number of sample tree situations the cost of applying similar bespoke engineering solutions which are outside the Streets Ahead contract, across the rest of the highway network is estimated to be of the order of £14-26 million. The Council does not have such additional funding available and many solutions would also be of a short term nature.” The text doesn’t actually respond to the ITP suggested “free” solution. Does that mean the “free” solutions aren’t actually free, or are the Council disagreeing with the ITP recommended solution, for example thinking that the ITP suggested solution (and indeed any of the “free” 14 solutions) cannot be used?
See above in relation to options included in the contract see above. The ITP advice was to consider particular solutions rather than saying they would be applicable and none of the suggested solutions could be applied.
Another key piece of information this. In effect it proves that the ITP process is worthless. The ITP can suggest solutions. But Amey can then just bamboozle the Council with reasons why the free solutions can’t be used. We have all seen loads of examples where the free solutions clearly can be used. But if the Council have no engineering experts, which we know they don’t, then again Amey have the advantage in terms of expertise. Whether the Council believe Amey, or are working hand in hand with Amey in a more underhand way, we don’t know. I suspect the former, with the Council not really having the expertise to question Amey’s assessments, leading to the felling of trees unnecessarily.
April 2017 –
In the in-redacted sections of the 25 year Streets Ahead PFI contract, there is the following text in italics:
19.2 Service Provider to Bear Loss
19.2.1 As between the Authority and the Service Provider, the Service Provider shall bear, without recourse to the Authority, any Loss suffered by any person which is caused by any Protestor or Trespasser, including any damage to property, any personal injury or death, and any loss of income (including any reduction in the Monthly Payment).
This would seem to indicate that the cost of delays caused by tree protesters are borne by Amey, as the service provider, rather than Sheffield Council. However, at a recent full Council meeting, in answer to a question by a member of the public, Cllr Bryan Lodge suggested that there were other parts of the contract that took precedence over this section, meaning that Sheffield Council would bear the cost of the delays caused by the protests. I’m not seeking the financial information relating to the costs of the protesters, but I am seeking clarity on whether it really is Amey or Sheffield Council that have to pay any costs of the delays caused by the protests, and would like to see the wording in the contract which confirms this.
The Council has published a redacted version of the Streets Ahead contract for public information. The Council has therefore fulfilled its duty in terms of FOI. Should you have questions of a legal nature relating to the interpretation of the contract then you must seek your own legal advice because how the contract is interpreted is not held in a recorded form therefore is not subject to FOI legislation.
They haven’t answered my question here, suggesting that all relevant information is in the public domain. We therefore need contract expertise from either Anne Baker or Craig Andrews to trawl through other sections of the contract and to confirm once and for all whether another section of the contract takes precedence over Section 19.2 of the contract quoted above. My suspicion is that there is none. My comments following question 3 give my full reasoning and insight.
In previous freedom of information requests in relation to the 25 year Streets Ahead PFI contract, I have had it confirmed that Sheffield Council would have to pay Amey any costs associated with delays that Sheffield Council had caused by its own actions. The Independent Tree Panel process was established in autumn 2014, long after the PFI contract was initially signed and agreed. This ITP process seems to have caused substantial delays, that were not envisaged when the contract was originally signed. From my estimates, it has delayed felling of some trees by at least a year, if not longer. Can you:
a) Confirm how long the delays caused by the ITP process are; and
We do not hold in a recorded form the length of the delays caused by the ITP. The area of carriageway and footway which has been delayed in being resurfaced has been published by the Council in recent press articles.
I expected this response. I wouldn’t expect them to know the specific length of the delays. However, in their answer, they do not deny that the ITP process has caused delays. Indeed, they go on to say that they have published information in the press about areas of carriageway and footway that has had delayed resurfacing. From memory, the press articles have been carefully worded to imply blame of the protesters for causing the delay in resurfacing, without specifically saying how. It’s pure spin. In a vague way, yes the protesters are to blame for causing the council to set up the ITP, which has caused the delay. So we’re indirectly to blame. But it’s on the verge of a lie!!!
b) Whether Sheffield Council have to pay the costs associated with this delay;
Yes, the Council will have to pay the costs associated with this delay.
Important confirmation that the Council will have to pay the costs of any delay associated with the ITP.
If the answer to Question 2b above is that the Council have to pay costs associated with this delay, can you tell me how much per month these costs are, and when this monthly cost starts being paid?
The costs are forecasted to be a seven figure number which cannot be confirmed exactly at this stage. The first bill associated with these delays has not yet been submitted because the tree protestors continue to prevent highway trees from being replaced therefore the areas of the city subject to delays in CIP works have not yet been completed.
This is vital information. The Council once again admit to being on the hook in relation to costs associated with the delays caused by the ITP, and admit that it’s a “seven figure number!!!” In other words, a minimum of £1 million!!! What they mean in terms of the first bill not being submitted is because Amey are on the hook for the costs associated with the delays caused by the protests (as per Section 19.2 of the contract). And I imagine it will be terribly difficult to untangle which delay is caused by the ITP process, and which delay is caused by the protesters. So how much does Sheffield Council have to pay Amey, and how much does Amey have to pay the Council? They’ll partly net each other out, but even so, this is fascinating information.