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20230110A-WBEM-PAWA-GRAC-reply
Dear Dai (Chairman - Glynneath Residents Against Contamination Group)
Thank you for your email received on the 1st January 2023. Apologies for the delay in responding as staff have been on annual leave.
I note your enquiry with regards to Neath Port Talbot Council refusing to upload third party representations associated with a housing development due to concerns around
GDPR.
Planning Aid Wales is a charity that supports community engagement in planning and it is our vision ‘For all the people of Wales to be able to fully and effectively participate in a fair, transparent and responsive planning system.’ Therefore, your enquiry is of interest to us and we have received similar enquiries from other organisations across Wales in relation to similar concerns.
Before outlining our response, I would highlight that Planning Aid Wales are not experts in General Data Protection Regulations and our commentary should not be considered as or taken as a substitute for legal advice on these matters.
Regarding your enquiry we have reviewed a range of documents:
• The Planning (Wales) Act 2015 and its precursor, the Town and Country Planning Act 1990 - ‘The Act’
• Associated subordinate legislation including The Town and Country Planning (Development Management Procedure) (Wales) Order 2012 and its precursor The Town and Country Planning (General Development Procedure) Order 1995
• Welsh Government’s Development Management Manual Revision 2, May 2017
• The Planning Advisory Service report Planning and GDPR Guide, published June 2021
• The Information Commissioner’s Office Decision dated 11th February 2020 relating to Torfaen County Borough Council (attached for information).
On investigation, we have found that there appears to be no requirement to publicise consultation responses within planning applications.
This is recognised in the Information Commissioner’s Office decision dated 11 February 2020 relating to a complaint regarding the publication of consultation responses relating to a planning application at Torfaen Borough Council (attached to this email). This states, in reference to obligations submitted by the Council:
“29…… The Council has a duty under section 10 of the 1990 Act to advertise such application and under section 10(2) it “must take into account any representations relating to the application which are received by them”
30. The Council confirmed that there is no statutory requirement, in planning law, for it to publish information relating to applications made in accordance with the 1990 Act…….”
Whilst this relates to a request by an applicant for the name and addresses of consultation responses to be provided and I recognise that this different from the query you have raised, we include a copy of the Decision Notice as there may be some useful conclusions that could be drawn to the specifics of your query.
There is a requirement to maintain a planning register, in 3 parts, in relation to planning applications but again The Act or the subordinate regulations do not require copies of consultation responses to be placed on the planning register.
The Planning Advisory Service (PAS) document “Planning and GDPR Guide” (June 2021) considers the issues in detail:
“However, the regulations are clear that they do not require the LPA to disclose to the public confidential information (i.e. information the disclosure of which is prohibited under an enactment, such as date protection
legislation).” PAS also state:
“Therefore, those LPAs that decide to publish comments need to introduce a process of review before allowing comments to go live. It is a risk to have a system that allows respondents’ comments to appear automatically as soon as they are made because the
LPA is liable for them” This goes on to conclude that,
“… there is no requirement to publish consultation responses, and the decision to publish or not is the LPA’s to take.
However, best practice in this area can be summed up as:
• All information that enables the public to participate effectively in the decision making process should be published online – where that is consistent with the GDPR.
• Information should be organised and presented in a way that makes it easy for the public to find what they need.
• The need for access to information changes once the decisions are made, or the opportunity for appeal has lapsed, and in the long term the public will only need to see the statutory register.”
Considering the above, PAS advise:
“There is clearly a balance to be struck. The more that the consultation process is carried out in plain view, the more the resource it will require to ensure that risks around data protection are managed. In our view, this means that only consultation
responses that are likely to have a significant impact upon rational decision-making process should be published. This will include those form statutory consultees and possibly amenity groups. In some situations it could also include individual responses
depending on the case and the issues. Some LPAs publish all consultation responses, taking the view that this proves to respondents themselves that the comment has been received. This is a legitimate approach, although responses should not be published without review and bulk responses (many copies of the same templated comment) should not be allowed to obscure or frustrate access to the rest of the information.”
Based on the above we can conclude that there does not appear to be any requirement for Neath Port Talbot Council to upload third party consultations and it appears to be a matter that is for each Local Planning Authority for themselves to decide.
Finally, you mention in your email that you wish for Planning Aid Wales to act as a “go between” between yourselves and the council. We cannot act as an intermediary between yourselves and the local authority – however we can assist with providing you with appropriate information which I hope you will find useful as outlined above. It is also noted that the Head of Planning has noted that anyone can request to view representations, and these can be redacted to omit personal information. We suggest that you write to the Council to make a request to view.
I trust the above is of assistance.
Kind regards,
Karen
Rosa Thomas
Helpline Administrator | Gweinyddwr Llinell Gymorth
Helpline opening hours:
11am-1pm, Mondays, Tuesdays, & Fridays
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