The First-Tier Tribunal has ruled that a district council was entitled to refuse to disclose correspondence passing between one of its solicitors and various members of its planning department.
In Clive Evans v IC EA/2015/0033 the FTT concluded that the correspondence was protected by legal professional privilege (LPP), so that an exception to the obligation to disclose arose under regulation 12(5)(b) of the Environmental Information Regulations 2004 (“EIR”), and the public interest in maintaining that exemption outweighed the public interest in disclosure.
The background to the case was the appellant’s solicitor had, in September 2012, been in communication with Aylesbury Vale’s planning department about issues affecting his property.
The appellant had carried out development at the property, which Aylesbury Vale considered was contrary to planning law.
Following an appeal against the council’s decision, a planning inspector decided that the development had not been authorised.
Aylesbury Vale was considering the issue of an enforcement notice requiring the demolition of the unauthorised construction as well as the response it should make to any court proceedings challenging the inspector’s decision.
There were also issues between the parties as to the precise scope and effect of the inspector’s decision.
In September 2012 a meeting took place between the appellant’s legal representative and Aylesbury Vale’s solicitor. The appellant told the FTT that he had called the meeting to resolve a difference of opinion as to the meaning of a particular statutory provision.
At the time, and over subsequent months, a number of internal emails were exchanged between the solicitor and his in-house clients. He also prepared draft documents.
The emails recorded advice by the solicitor on legal, procedural and evidential issues arising out of the arguments raised by the appellant and his legal representative.
In October 2012 the solicitor provided further advice after the council became aware that the appellant had issued judicial review proceedings in respect of the inspector’s decision.
This included preparation of a lengthy letter that was sent to the appellant’s solicitor in December 2012.
There was further advice on correspondence received from the appellant and/or his solicitor complaining about the handling of planning matters affecting the property.
The appellant inspected the council’s files in March 2013. He subsequently claimed that there was missing information – including a draft letter from the solicitor – and made a freedom of information request.
In particular he sought 21 November 2012 correspondence between the solicitor and various planning officers, and correspondence between the solicitor and a planning officer over counsel’s opinion.
Aylesbury Vale disclosed some of the requested materials but declined to disclose that which it said was subject to LPP.
An internal review concluded that the council had been entitled to refuse the information request. This position was backed by the Information Commissioner, following an investigation.
The FTT has now also concluded that:
- It had taken particular care to satisfy itself that all the advice provided by the solicitor might properly be characterised as legal advice given in a professional capacity;
- The appellant’s argument was based on an incorrect premise – that the process of appealing a planning decision to the Planning Inspectorate was not the sort of process which could properly be characterised as “litigation” for the purposes of attracting privilege. “We believe that it is. Moreover, the correspondence between the parties which we have seen makes it very clear that the council believed that it was at risk of legal challenge and litigation being instigated against it, and that it was justified in that belief. The correspondence from the appellant and his solicitor was highly critical of and challenging against the council’s staff….and fully justified the council’s belief that litigation was a real prospect.”
- The solicitor provided advice and assistance on a wide range of issues relating to the appellant’s planning matter generally, all of which were potentially contentious. “In one respect the prospect of litigation became reality when, in October 2012, the appellant sought judicial review of the Inspector’s decision. The fact that the council was not named as a party to that application, and chose not to attempt to be joined, does not alter the fact that it had a material interest in the outcome and that its legal advice in that respect was covered by litigation privilege.”
- The withheld information was covered by litigation privilege as well as legal advice privilege.
- It was evident to the FTT, from reading the communications between the appellant and the council, that the council would be placed at considerable disadvantage, in both any litigation which ensued and in its attempts to deal with the various complaints and criticisms directed at it, if the appellant were to be provided with details of the legal advice it received during the relevant period.
- The appellant had already relied upon a small amount of correspondence, for which privilege was inadvertently waived, “as the basis for an attack on the solicitor for adopting the entirely honest and proper process of discussing a draft letter with his clients before it was finalised and sent to the appellant’s solicitor”. The tribunal said it had no doubt that, if the undisclosed confidential advice were also to be disclosed, the appellant would similarly look for material with which to impugn the honesty and professionalism of the council’s staff. “We should add that our own inspection of the withheld information demonstrated to us that it disclosed nothing that would justify criticism against the council’s internal handling of the matter.”
- Disclosure of this type of internal legal advice material might also set a precedent, “which would have a more general adverse effect on the right of all planning authorities to seek and receive legal advice with an expectation that it would remain confidential and would not become available to those who wished to supplement their normal appeal rights with satellite claims designed to put pressure on those making or enforcing planning decisions”.
- There was no evidence to support the appellant’s claim that the council had been guilty of bias and had formed a perverse intention to defeat his planning application.
- There was nothing inappropriate in the stance adopted by Aylesbury Vale in refusing to accept an opinion the appellant had obtained from a senior barrister in the planning field. “It was perfectly open to the council and in its right to decide that, whatever the standing of the individual, it preferred its own interpretation of a provision which, as the appellant explained to us, was not the subject of weighty case law authority.”
The Tribunal concluded that it had seen no evidence and heard no argument that led it to believe that the Information Commissioner had fallen into any error in his analysis of the public interest factors for and against the maintenance of the exception.
“He was right to conclude that the exception applied to the withheld information and that the public interest in maintaining the exception outweighed the public interest in disclosure,” the FTT said, dismissing the appeal.
The FTT ruling can be viewed here.