Council was entitled to refuse disclosure of planning documents, tribunal rules

Clive Evans had carried out development that the Council had determined to be contrary to planning law. On appeal the inspector decided that the works had not been authorised. Evans then issued judicial review proceedings in relation to the inspector's decision and the Council's solicitor provided internal legal advice as to their position. The solicitor liaised with the planning officers and provided further advice on various relevant matters, including letters received from the appellant and the appellant's solicitor.

In March 2013 Evans inspected the Council's files and made a request for further information under the Freedom of Information Act. The Council responded and disclosed some of the requested information but withheld some correspondence on the basis that it was subject to legal professional privilege.

The Council concluded that the requested information constituted environmental information which fell to be considered under the Environmental Information Regulations 2004 (EIR). This entitles the Council to withhold the information on the ground that its disclosure would "adversely affect" the course of justice and the process of a fair trial.  The Council sought to rely on this exception on the basis that the case in the public interest in maintaining the exception outweighed the public interest in disclosing the information.

Evans made a further complaint to the Information Commissioner's Office (ICO). The ICO considered the Council's application of the exception and concluded that the Council "had been entitled to refuse the information request."

On 6 February Evans lodged an appeal against the ICO's decision, raising four issues.

The first issue was Evans's claim that the correspondence between the solicitor and planning officers was not subject to legal privilege as it "strayed beyond [the] role of a lawyer and commented on commercial or political issues". Judge Chris Ryan was satisfied that the advice was "legal advice given in a professional capacity".

Secondly, Evans claimed that some of the communication was not subject to litigation privilege as there had been no real prospect of litigation at that point. However, the Court found that the Council's belief that litigation was a real prospect was fully justified and this was realised when Evans sought judicial review.

Thirdly, the Court considered whether disclosure of the information would have the adverse effect required in order to justify relying upon the exception. The Court found that there was nothing in the documents that showed any misconduct by the Council and therefore concluded that disclosure would have had an adverse effect on two grounds. The first ground was that the Council would incur further time and costs in "defending itself against further criticism". The second ground was that disclosure of this type may 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."

The final issue the Court had to consider was whether the public interest in maintaining the exception outweighed the public interest in disclosure. Evans said that the Council "should not be entitled to reply on the exception because it had been guilty of bias" and that the Council had acted contrary to the National Planning Policy Framework and its own code of conduct as it did not adopt a "cooperative attitude". Both of these arguments were rejected.

The judge concluded that there was "no evidence and no argument that leads us to believe that the [ICO] fell into any error in his careful 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."

Planning expert Emma Cottam of Pinsent Masons, the law firm behind Out-Law.com, said "the Court's application of the exception in the Environmental Information Regulations will be welcomed by local planning authorities across the country."

"The first two issues put forward in respect of privilege were quickly dealt with and subsequently dismissed by the judge, and whilst the judgment was unanimous in its dismissal of Evans's position, it does offer some guidance to prospective claimants seeking to argue that privilege, particularly litigation privilege, should not apply." said Cottam.  "The judge was clear in that Evans's reliance upon the prospect of a planning appeal not being classified as litigation privilege was an incorrect presumption. The correspondence from Evans and his solicitor was also held to be 'highly critical and challenging' and therefore justified the Council's belief that litigation was a real prospect."

"Consideration of the final two issues, which focused on the EIR exception, is an interesting example of balancing private interest and public policy," said Cottam. "This contrasts the recent ICO decisions on disclosure of viability assessments in planning decisions where the public interest for disclosure has generally been held to outweigh the private interests in maintaining commercially confidential information. Public authorities, private developers and their legal advisors will welcome the Court's confirmation of the common law principle that seeking and receiving legal advice and for that advice to remain confidential is a 'fundamental right'."