Upper Tribunal (Administrative Appeals Chamber)

PC v IC & Steyning Parish Council

[2015] UKUT 650 (AAC)

 

 

IN THE UPPER TRIBUNAL Case No.  GIA/3124/2014

ADMINISTRATIVE APPEALS CHAMBER

 

 

THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008

 

Applicant: Mr Paul Campbell

First Respondent: The Information Commissioner

Second Respondent: Steyning Parish Council

First-tier Tribunal: First-tier Tribunal (Information Rights)

First-tier Tribunal Case No: EA/2013/0225

First-tier Tribunal decision date: 3 April 2014

 

 

NOTICE OF DETERMINATION OF

APPLICATION FOR PERMISSION TO APPEAL

 

1. This is an application by the information requester for permission to appeal to the Upper Tribunal against a decision of a First-tier Tribunal made on 3 April 2014. For the reasons set out below I refuse permission to appeal.

 

2. I held an oral hearing of the application on 16 November 2015 at which the Applicant, a former solicitor and deputy district judge, appeared in person. Neither of the Respondents were represented, I having indicated that they need not be.

 

3. By its decision the First-tier Tribunal dismissed the Applicant’s appeal against a decision of the First Respondent (IC), made on 8 October 2013, dismissing the Applicant’s complaint in respect of a decision by the Second Respondent, made on 6 February 2013, refusing to answer the Applicant’s request for information on the ground that the request was manifestly unreasonable, within reg. 12(4)(b) of the Environmental Information Regulations 2004. The IC and the FTT applied or intended to apply the guidance given by the Upper Tribunal in the Dransfield case. The progress of this application was stayed for a substantial period in order to await the decision of the Court of Appeal in Dransfield, which was given in May 2015 [2015] EWCA Civ 454.

 

4. The information request was made on 26 January 2013. The background to it was that the Council owns an area of land, known as the Memorial Playing Field, which, or part of which, is registered as a village green. The Council had applied for planning permission to construct a skate park on part of its land. The land immediately to the west of the application site, together with a strip of land on the west of the application site itself, falls within the South Downs National Park. There was substantial local feeling both for and against the skate park proposal. An unincorporated association, called the Friends of the Memorial Playing Field (FOMPF), co-ordinated opposition to the proposal. The Applicant describes himself as the honorary legal adviser to the FOMPF.

 

5. The Applicant’s letter of 26 January 2013 referred to the Council’s legal duty (see s.11A(2) of the National Parks and Access to the Countryside Act 1949), in exercising or performing any functions in relation to, or so as to affect, land, to have regard to National Park purposes. Those purposes are to conserve and enhance their natural beauty, wildlife and cultural heritage and to promote opportunities for the understanding and enjoyment of their special qualities by the public. The letter concluded as follows:

 

“In the circumstances of this significantly increased impact on the national Park ……and in the light of the fact that there is an alternative scheme for a skate park in the Leisure Centre car park, please let me see the documented performance of your duty, or confirm that the duty had not been performed. Non-performance of your duty leaves the whole planning process open to judicial review.”

 

6. In November 2013 – i.e. shortly after the IC’s decision – an application by FOMPF for permission to bring judicial review proceedings in respect of a decision by the Council in around May 2013 to amend its planning application for the skate park project was dismissed by Cranston J. The basis of the judicial review application was that the Council had not had regard to national park purposes. The ground for the dismissal was that the application was premature, in the sense that if Horsham District Council did not grant planning permission, the decision sought to be judicially reviewed would be academic.

 

7. In dismissing the Applicant’s appeal on 3 April 2014 the FTT relied in particular on the following matters. First, as regards the burden on the Council, the Tribunal noted that the Council had dealt with over 65 pieces of correspondence from the Applicant dealing not just with FOI/EIR requests, but other planning issues and questions. The Applicant, in his grounds for this appeal, notes that he claimed to have identified 17 separate categories of ‘failing’ relating to the skatepark project. The Tribunal accepted that the Applicant’s requests and correspondence had imposed a very considerable burden on the Council’s two staff. As an indication of the complexity to which this had all given rise, the FTT noted that, in an application for costs of the FTT proceedings, the Applicant said that he had spent 173 hours preparing for the appeal to the FTT. The FTT referred also to the amount of documentation relevant to the case, namely “three weighty bundles of 374, 218 and 249 pages.”

 

8. Secondly, as regards the Applicant’s motive, the FTT said:

 

“17. ………………………………It is transparently clear that the original motivation for this course of conduct was to challenge the plan to build a skate park. In order to achieve this he has systematically scrutinised and challenged a large number of the Council’s operations.

 

18. Objectively this is a clear attempt to undermine the self-confidence of the Council and of the community’s confidence in the Council’s operations and to undermine the Council’s willingness and ability to proceed with the project, by seeking information, challenging decisions, querying the conduct of individuals. It was clear to the Tribunal that in many cases [he] was taking an extreme position on issues relating to the Council; placing the most severe interpretation on every issue that he had identified, he did not stand back, but pursued every argument to an extreme. The Council (using the previous edition of the IC’s guidance) identified this as obsessive. The lack of proportion and fairness in his conduct and criticism makes that conclusion entirely understandable.

 

19. ……………………………………………….

 

20. The process (of which EIR/FOIA requests were a significant component) which [the Applicant] had followed has not only caused a considerable burden on and harrassment of Councillors and staff but was motivated by a desire to obstruct and, given the structure of decision making, was likely to be of minimal value in helping public understanding of issues relating to the environment. The request was an abuse of a statutory right. The Tribunal was satisfied that both the Council and the [IC] had correctly characterised the request as manifestly unreasonable and had correctly analysed the facts and law.”

 

9. Thirdly, as to whether the request had a serious value or purpose, the FTT referred in para. 6 of its decision to paras. 29-33 of the IC’s Decision Notice, where the IC (in the FTT’s words) “noted the ongoing issue about the skate park, that there were other routes for resolution of this and other issues and he was not in a position to make findings as to the legality of the Council’s conduct with respect to the schedule of issues which [the Applicant] described as illegal, unlawful, deceptive and inappropriate.” I have noted that, in para. 20, in setting out its conclusions, the FTT said that the process … “given the structure of decision making was likely to be of minimal value in helping public understanding of issues relating to the environment.”

 

10. As regards the question of harrassment of the Council and its staff, the FTT’s findings are indicated in the passages which I have quoted. In addition, the FTT said in para. 19 that “…….. in pressing his request and appeals he has placed very serious burdens on the resources of the Council, he has denigrated the Council and its members which will undoubtedly have led to feelings of harrassment………….”

 

11. Appeal to the Upper Tribunal lies only on the ground of error of law. In his typed submissions for the permission application the Applicant summarises his re-amended grounds of appeal (which run to 37 pages) as follows:

 

“a. The FTT did not consider adequately whether there was any justification for the January 2013 EIR request itself;

 

b.  With subsidiary points that in my submission

i. the FTT did not deal appropriately with the evidence adduced and drew conclusions of its own as to motive which were not supported by the evidence, and for which no adequate reasons were given;

ii  did not address the public interest test: and

iii did not address the presumption of disclosure principle”

 

12. In a Direction which I made on 3 September 2014 staying the application pending the Court of Appeal’s decision in Dransfield, I indicated that but for a number of developments, I would have been minded to give permission to appeal, as it seemed to me that the grounds of appeal raised matters of substance “which can best be considered with the benefit of submissions from the other parties in an appeal.” In other words, I was unable to say, looking simply at the FTT’s reasons and the grounds of appeal, that the grounds of appeal were without substance, and I considered that it would be of assistance to have submissions from the respondents, and to give permission for that purpose. The matter which particularly concerned me was whether the FTT had sufficiently taken into account whether the request had a real purpose and value, which the Court of Appeal has since indicated in Dransfield should be the primary consideration under reg. 12(4)(b) (see especially para. 68 of the Court of Appeal’s decision).

 

13. However, having noted the developments which had taken place since the refusal of the request, and in particular the very recent withdrawal by the Council of the planning application for the skate park, I requested the Applicant to state whether in the light of those developments he wished to continue with his application and if so why. The Applicant, in a response, as amended in July 2005, running to 9 pages, said that he did wish to continue, and gave his reasons. I considered that those reasons could best be explored at an oral hearing of the application for permission.  

 

14. The major developments which have taken place, since the refusal of the information request in February 2013, are the following. (Much information is available on the websites of the Council and of the FOMPF):

 

(1) On 13 January 2014 there was a parish Council meeting, the Minutes of which note that the  “Working Group” had met in order to (as it is put in the Minutes) “re-affirm the regard for [National Park] purposes.” The Minutes record that the Working Group had concluded that

 

“The Parish Council felt that the fact that the facility would be right on the edge of one of the largest national parks in England should not prejudice its ability to realise its plans. [The Council] considered that the proposed siting of a small skateboard facility in the upper part of the Memorial Playing Field would not conflict with either of the South Downs National Park purposes.”

 

The Minutes go on to record that it was agreed “that the council has complied with its duty to give due regard to the SDNP purposes with regard to the proposed skateboard facility in MPF.”

 

(2) In August 2014 the application for planning permission for the skate park to be sited on the MPF was withdrawn, the Council having been advised by Horsham District Council that planning permission would not be granted while the land was registered as a village green.

 

(3) At a meeting of the Council on 19 November 2014 the Council decided that it would not apply for what was described as “rectification” of the village green status – i.e. for the deregistration of the relevant land as a village green.

 

(4) On 12 January 2015 planning permission was granted, on appeal, pursuant to an application made by the FOMPF, for the construction of a skatepark at an alternative site, at the Leisure Centre.

 

(5) In May 2015 Council elections took place, at which 4 persons in sympathy with the aims of the FOMPF were elected.

 

15. On the face of it, these developments remove or substantially reduce such significance as the answer to the request might have had in February 2013. On the face of it the request has ceased to have any real value or purpose; the skate park is not going to be built on the MPF. The National Park purposes had in any event been (re)considered in January 2014. The question whether, and in what form, the National Park purposes were considered in or prior to January 2013 appears to have become largely academic.

 

16. The Applicant submits, however, that he should nevertheless be given permission to appeal for 7 reasons.

 

17. First, he contends that if his application were to be refused on this ground it would involve imposing a condition or hurdle on him which is not provided for in FOIA. He says that it is not a condition of making a freedom of information request that the information requested has to be of any particular importance or continuing relevance. That is true. However, I am concerned here with an application for permission to appeal against a decision by the FTT that the request was manifestly unreasonable. Although I have said that the grounds for that appeal are not obviously unarguable, it is far from clear that, if permission were to be given, the FTT’s decision would after full argument be set aside as wrong in law. Even if it were, it is even less clear that, in re-making the FTT’s decision, it would be found that the request was not manifestly unreasonable when made. But even if that were to be found, I held in RS v IC and NEDDC [2015] UKUT 568 (AAC) that in determining whether the public authority should be directed to comply with the request it is permissible to take into accounts events since the refusal of the request, such as a diminution in its significance, such as would render it manifestly unreasonable if made now. There were in this case now before me other factors, identified by the FTT, such as the nature and number of previous requests, which arguably contributed to rendering the request manifestly unreasonable. Where reg. 12(4)(b) is in issue, the value and importance of the request become  relevant, even though they would not be if reg. 12(4)(b) were not invoked. Further, this being an application for permission, there is an element of discretion in the Upper Tribunal, to which the continuing value and importance of the request can be material.

 

18. Secondly, the Applicant contends that, even if there were no further possibility of the skate park being built on the MPF (see below), his request is of continuing importance because the DEFRA guidance on the National Park purposes, to which he referred me, emphasises that relevant authorities should ensure that decisions are properly considered and recorded at all relevant stages. It is important for the public to know whether that duty was carried out in this case. However, my view is that in reality it is now of very little importance. He further submits that the subsequent events are not material to what his motive was at the time when he made his request. That is in a sense true. However, if he wishes to persist with his request long after the answer has ceased to be of real significance, then (i) that may throw light on what his motive throughout has actually been, but in any event (ii) it may show that his motive, whatever it once was, has become one not of wishing to know the information because of its inherent value, but (for example) simply one of wishing to score points against particular councillors by showing that they did not act properly.

 

19. Thirdly, the Applicant says that dismissal of his application would “mean that the body of decisions relating to the skatepark and to different matters at the same or similar locations cannot be checked for consistency with regard to National Park purposes.” I am not satisfied that the examples which the Applicant has given indicate that there is any real need for such an exercise of checking for consistency. As part of this point, the Applicant submits that there is evidence that the project for a skate park on the MPF is not ‘dead’. He refers to the matters referred to on pages 110 to 119 of the Upper Tribunal bundle. I do not consider that  those references indicate that there is any longer any real possibility of a skate park on the MPF. The possibility that the relevant land might be removed from village green status by means of a ‘swap’ is entirely speculative. The location of the new skate park, at the Leisure Centre, has now been fixed. The possibility of the skate park proposal being sited on the MPF appears to be at present fanciful. In any event, the national park purposes were reconsidered by the Council in January 2014, by reference to the working party’s views. I do not agree that there was any element of unlawful delegation to the working party. The Council was entitled to agree with the working party’s recommendation.

 

20. Fourthly, he contends that dismissal of his application would mean that the integrity of the Council could not be checked when it claims to have carried out an important statutory duty when there is no evidence that it did so. That seems to me, with respect, to be simply a restatement in slightly different form of the second point.

 

21. Fifthly, he contends that he would be deprived of the opportunity to seek costs if it turns out that the requested documents never existed. He says that, if he were to succeed in having the FTT’s decision set aside as wrong in law, and then to succeed (before whoever re-makes the decision) in establishing that his request was not manifestly unreasonable, he would ask for costs of those proceedings to be reserved, pending compliance with his request. If the Council’s response were to be that no documents were held, he would contend that the Council’s opposition to his appeal must have been unreasonable, as it could without any difficulty or expense simply have stated that there were no documents. However, that last proposition does not follow. One of the Council’s points was that a considerable number of searches would have to be made. But it may be just as, indeed more, time consuming to search for documents which might exist but turn out not to do so as to search for ones which do exist.

 

22. Finally, in response to the point (which I mentioned in my Direction) that it appeared from the Council’s website that no subsequent information requests had been refused on the ground that they were manifestly unreasonable, the Applicant says that he has made only one request in the last two years, in October 2015, which has been partially answered. He says that he has felt constrained by the FTT’s decision not to ask for information which he might otherwise have done. He accepts that what the Council might do is speculative, but continues:

 

“I submit it is probable that if my application for permission to appeal is dismissed any future requests will once more be measured against the FTT’s findings in paras. 17 to 20 of its judgment that he is “obsessive”, “lacking in proportion and fairness” and “intent on overriding and disrupting the Council’s processes” (which I deny ….). If the application  … is dismissed it is likely that I will once more be portrayed in the way I was when the FTT made its findings and will be further vilified and will likely have any FOI or EIR requests turned down.”

 

That is in reality a submission that, even if there is now no continuing value in the requests, he should be entitled to appeal in order to establish that the request was not manifestly unreasonable. That point is not wholly without force. However, it is only one point to be taken into account in determining whether I should give permission to appeal. Its force is in my view substantially diminished by the fact that nearly 3 years have now passed since this request was refused. The greater the time which elapses, the less significance the history of previous requests will have in relation to whether a further request is manifestly unreasonable or vexatious. Further, the Court of Appeal has now affirmed that the primary consideration is whether the request has a reasonable foundation, that is a reasonable foundation for thinking that the information sought would be of value to the requester, or to the public or any section of the public. That particular question has to be answered on its merits by reference to the terms of the particular request in issue.

 

23 . In my judgment it would not in all the circumstances of this case be right to give permission to appeal. The particular considerations which weigh with me in reaching that conclusion are:

 

(a) It is far from clear that the FTT’s decision would be found to be wrong in law. The FTT clearly did give some consideration to the value of the information sought. Even if the FTT’s decision were to be set aside as wrong in law, it is very unclear whether, in re-making that decision, the request would be found not to have been manifestly unreasonable when made. The outcome might well be the same.

 

(b) If (contrary to the FTT’s finding in para. 20 of its decision) the information sought ever had more than minimal value, that value has been very substantially diminished by subsequent events. That has two consequences: (i) in re-making the FTT’s decision, if it were to be set aside, I consider that it is likely, on what I have seen, that even if it were to be found that the request was not manifestly unreasonable when made, the Council would not be required to answer the request because it has been rendered manifestly unreasonable by subsequent events: see para. 17 above; (ii) it is relevant to the exercise of the discretion whether to give permission to appeal.

 

(c) It cannot be denied that the need to resist an appeal would result in the expenditure of substantial costs by at least one public authority (the Council), and possibly also the IC.

 

 

 

(Signed)

 

Charles Turnbull

Judge of the Upper Tribunal

 

(Dated) 18 November 2015