In the case Brooksbank v The Information Commissioner [2019] UKFTT 2018_0226 (GRC), the First-tier Tribunal has ordered Ryedale District Council to disclose the briefing question it sent to Queen’s Counsel seeking advice on a motion in which councillors sought for competing retail planning applications to be ‘called in’

The background to the case involves a long-running dispute over which site in Malton, Yorkshire should be developed as a supermarket. A majority of councillors on the planning committee, supported by key officials, thought that the appropriate site was the Wentworth Street Car Park in Malton (WSCP) owned by the council, whereas other councillors and many residents felt that the livestock market was more appropriate.

The dispute culminated in a judicial review challenge in April 2014 that saw Mr Justice Dove quash a decision by the council to grant planning permission to a developer for WSCP.

Ms Brooksbank, who was a resident but not a councillor, submitted a request under the Freedom of Information Act 2000 to Ryedale District Council (RDC) in February 2018. This was in various parts but included a request for “the specific wording of the briefing question which RDC asked Nathalie Lieven QC to address in January 2012” about the motion.

The council initially dealt with Ms Brooksbank’s request on the basis that FOIA applied. However, the Information Commissioner later decided that the relevant legislation was the Environment Information Regulations 2004 because the information constituted ‘environmental information’.

After the Information Commissioner signalled that the EIR applied, RDC said it relied on regulation 12(5)(b) (adverse effect on the course of justice) in refusing the request.

The Commissioner decided that regulation 12(5)(b) applied to the part of the request dealing with the briefing question and that the public interest favoured withholding the information.

The appeal before the FTT was limited to this element of the request. Ms Brooksbank did not dispute that regulation 12(5)(b) was engaged, but instead she focused on the public interest argument.

The FTT said the instructions to Ms Lieven canvassed two broad issues: (i) whether the council could invite the Secretary of State to call in the planning applications before it made provisional decisions to grant or refuse; and (ii) whether the council was conflicted in making the planning decisions because it was the owner of WSCP.

In its assessment of the competing public interest arguments, the Tribunal said some of Ms Brooksbank’s arguments in favour of disclosure were wide of the mark. The FTT also said there was nothing in the point that one would have expected the QC’s fee to be more than £1,500 plus VAT had she been properly briefed.

The Tribunal said it had placed the considerable weight required by case law on the importance of maintaining legal advice privilege and LPP [legal professional privilege] more generally. However, it concluded, “albeit by a fine margin”, that the public interest favoured disclosure.

This was because:

(i) Considerable time has elapsed since the Instructions were sent (and the Advice given). Legal advice privilege is particularly strong where the advice is recent and the issue to which it relates remains current. By contrast, it may be weaker (though still significant) where the advice is old and/or is no longer current. Here, the request was made some six years after the Instructions were sent and some two and a half years after Mr Justice Dove’s decision quashing the re-grant of permission to GMI [purchaser of the car park]. The Council argues that the subject-matter of the Instructions will remain relevant for any future proposal to develop WSCP and for its procedures more generally. This is not persuasive. The particular factual context of the Instructions is unlikely to be repeated.

(ii) In this connection, although public bodies are as entitled to claim LPP as anyone else, the need to protect privilege is less compelling where, as here, the public body is really seeking advice about general points of law and the advice does not depend on a particular set of facts.

(iii) In any event, to the extent that the matters canvassed are relevant to how the Council conducts itself in similar situations in the future, there is every reason for both members and residents to understand the broad issues. How calling-in works, and whether and in what circumstances local authorities are constrained from determining planning applications where they own and wish to dispose of the land in question, should not be kept from members or residents.

(iv) The Tribunal does not accept that disclosure means that the Council is likely to be deterred from seeking legal advice on related (or other) matters in the future: it will know that LPP will be accorded strong weight and is likely to be decisive, at least while the advice remains live. In any event, the fact is that Parliament has decided that section 42 FOIA should be a qualified exemption, and the European Union and subsequently Parliament has decided that regulation 12(5)(b) (including LPP) should be a qualified exception, and it follows that public authorities are aware that there are circumstances in which legal advice and any Instructions to Counsel which precede it may have to be disclosed. A chilling effect on the willingness to obtain legal advice, even if realistically present, cannot therefore be decisive.

(v) As Ms Brooksbank argues, the context here was not only the Council’s dual role as selling landowner and planning application decision-maker but the fact that a third party wished to develop separate sites and would be unlikely to be permitted to do so if permission were granted for the Council-owned site. That argues for maximum transparency.

(vi) There appears to be no prospect of disclosure of the Instructions making the Council vulnerable to legal action, as the Council claimed (in relation to all the requested information) in its initial response and in correspondence with the Commissioner.

(vii) It would appear on general principle that members, had they asked for them, would have been entitled to see the Instructions (and the Advice) for the 12 January 2012 meeting so that they could make informed decisions. It does not follow, as Ms Brooksbank argues, that residents such as herself should also have had access to the documents – local authorities are entitled to seek legal advice on a confidential basis – but the fact that the elected representatives, including members opposed to what officers were proposing, could have had access to the Instructions diminishes the weight to be attached to the confidentiality which LPP is designed to protect.

(viii) The disputes around the planning applications have cost the Council a great deal of money. The inspector overturned the refusal of FME’s revised application and Mr Justice Dove was highly critical of the process leading to the re-grant of permission for WSCP. As noted above, the Council, faced with legal challenges, cannot be criticised for defending its position, but the heavy drain on taxpayers’ resources nevertheless points to maximum transparency of the processes which led to the challenges.

(ix) In this connection, whilst it is not for the Tribunal to reach a conclusion as to whether the Council was unlawfully predisposed to grant planning permission for WSCP and refuse it for the livestock market, it cannot be said reading the correspondence that residents’ suspicions were fanciful. The inspector on FME’s appeal noted that officers had adopted what they described as a ‘novel’ application of the sequential test, leading them to advise the planning committee that the WSCP site was preferable to the livestock market (at the inquiry, the Council planning witness acknowledged significant flaws in the Council’s approach). The inspector awarded costs against the Council on some of the issues –costs are only awarded in planning inquiries where a party has behaved unreasonably. The costs were later agreed at £148,000. The fact that, if the Council was so predisposed, the predisposition may have been motivated by an understandable desire to maximise revenue at a time of a major squeeze on its finances does not diminish the need for light to be shone on how it conducted itself.

(x) Although the issues canvassed in the Instructions to Ms Lieven may not have played a central role in the saga, the question-marks about how the Council handled the applications again argues for maximum transparency.

(xi) The Tribunal observes that, if Ms Brooksbank’s expectation is that the Instructions contain a smoking gun, she is likely to be disappointed. Mr Winship [the council’s head of legal] explained the background clearly and asked his questions in a methodical manner. However, there can be a public interest in showing that a public authority acted properly in a particular respect, so that unwarranted suspicions can be allayed; there is not only public interest in revealing wrongdoing.

(xii) Ms Brooksbank’s desire to use the dispute as a case-study for more general political philosophy discourse in a book, and to have as complete a bank of information as possible to validate the case-study, carries some public interest, albeit in the Tribunal’s judgment only slight.

(xiii) Despite this, the overall arguments in favour of disclosure are strong and at least as strong as those in favour of withholding the information, indeed probably marginally stronger.

(xiv) Under the EIR, there is a presumption in favour of disclosure, which is determinative in a finely-balanced case such as the present one.”

The FTT therefore unanimously allowed the appeal.