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Councillor from neighbouring authority fails in bid to obtain legal advice on planning application after Tribunal upholds privilege

The First-tier Tribunal (General Regulatory Chamber) has rejected an appeal lodged against the Information Commissioner by a member of Leeds City Council concerning a planning application for a field adjacent to his ward but in Harrogate Borough Council’s area.

In Lamb v The Information Commissioner (Dismissed) [2019] UKFTT 2019_0194 (GRC) (22 November 2019) Judge Fiona Henderson ruled against Cllr Alan Lamb and upheld Harrogate’s refusal to release the documents involved.

The case concerned a planning application for up to 210 homes and associated infrastructure at Wetherby, on the boundary between the two council areas.

Harrogate’s planning committee initially prepared to refuse the application due to a lack of health and education provision and insufficient highway access.

The council’s solicitor then warned members that to refuse it would “result in a situation whereby risks on the council’s part may exist”.

This meant the item was deferred to a future meeting where an exempt briefing note would be presented, and when that happened the committee voted to support the application.

Cllr Lamb argued that the committee changed its mind upon essentially the same evidence with the confidential report being the only difference, and called for its release.

Harrogate refused to release the report relying upon EIRs: regulation 12(4)(e) (internal communications) and regulation 12(5)(d) (confidentiality of proceedings) and added, following a review, regulation 12(5)(b) (prejudice to the course of justice).

Cllr Lamb complained to the Information Commissioner, who decided exemption 12(5)(b) was engaged and the public interest favoured withholding the information.

Judge Henderson said: “We are satisfied that there must be an adverse effect resulting from disclosure of the information.

“At the relevant date we are satisfied that the case was ‘live’ in that it was still possible to influence the outcome and the potential for legal challenge remained.”

She said Cllr Lamb had been “frank with the tribunal that he and others opposed to the development were actively seeking ways to challenge the council’s decision”.

The tribunal was required to look at whether disclosure would weaken general confidence in the efficacy of legal professional privilege and “in our judgment it is more probable than not that there would”.

Judge Henderson said it was known that those opposed to the development had considered litigation and that one ground argued by Cllr Lamb “amounts to a ‘fishing expedition’ we are not satisfied that it is in the public interest that the public should have access to the council’s legal advice to enable it to determine whether to litigate against the council.

“Litigation usually includes disclosure of relevant documentation once litigation has been launched.”

She said Cllr Lamb’s case was that there must have been something in the withheld information which caused the council to change its mind between the two meetings but “the tribunal disagrees with this characterisation”.

Having seen the withheld material the tribunal concluded that it contained no ‘smoking gun’ and so was “satisfied that there is nothing exceptional within the legal advice that would fall within that category”.

Mark Smulian