Ralph v Information Commissioner and Bexley Council [2007] UKIT EA_2006

Information Tribunal Appeal Number: Case No. EA/2006/0020

Information Commissioner’s Ref: FS50153564

Heard at the Finance & Tax Tribunal

Bedford Square London Decision Promulgated

On 13^th September 2007 4 October 2007

BEFORE

DEPUTY CHAIRMAN
Peter Marquand

and

LAY MEMBERS

Gareth Jones

Steven Shaw

B E T W E E N :

MR GEORGE RALPH

Appellant

and

THE INFORMATION COMMISSIONER

Respondent

and

THE LONDON BOROUGH OF BEXLEY

Additional Party

Representations:

For the Appellant:
For the Respondent:
For the Additional Party:

In person

Paul Nichols, Counsel

James Cornwell, Counsel

DECISION

The Tribunal dismisses this appeal. The Tribunal’s conclusion is that the
London Borough of Bexley does not hold the information sought by Mr Ralph
and has made available to him the information that it does hold.

Reasons for Decision

Summary Background

1. Mr Ralph is an architect and in 2004 was acting for a client in relation
to a piece of land known as Builders Yard, No. 1 Parsonage Lane in
Sidcup. On behalf of his client, Mr Ralph had made various
applications for planning permission in relation to No. 1 Parsonage
Lane and the London Borough of Bexley (“the Council”) had raised
“abandonment” as a relevant issue when considering the applications.
When the agenda was produced for the Council’s Planning Control
Committee, Mr Ralph believed that it did not refer to the issue of
abandonment and therefore asked the Council for the information
concerning this issue. Mr Ralph also sought to defer the consideration
of the planning applications, but on the 21^st April 2005, the Planning
Committee refused planning permission.

The Request for Information

2. By letter dated the 2^nd February 2005, Mr Ralph requested the
following information:

“I confirm my request for access to the documentation,
which raised doubts about the lawful use of my client’s land
at Parsonage Lane, and for a copy of your response to the
Planning Department on the obscure issue of
abandonment”

3. This letter was written to Mr Maughan, Assistant Director of Legal
Services for the Council. Mr Maughan responded by letter of the 24^thFebruary 2005 refusing to disclose any confidential legal advice and
recording his understanding that Mr Ralph had already received copies
of documentation raising doubts about the lawful use of the land. It will
be necessary to return to this exchange of correspondence in detail
later on in this Decision. On the 1^st March 2005 Mr Ralph repeated his
request referring to the Freedom of Information Act (FOIA). Mr
Maughan replied by letter dated the 24^th March, again refusing access
to legal advice.

4. By letter dated the 6^th April 2005 Mr Ralph applied to the Information
Commissioner enclosing correspondence, which again will be
considered later in the Decision. Referring to a meeting of the
Planning Control Committee on the 13^th January 2005, Mr Ralph’s
letter stated:

“… the issue of abandonment was omitted from the report
to the Planning Committee, and the legal advice and the
instigating letter were missing from the planner’s file.”

5. The Information Commissioner issued a Decision Notice dated the 11^thApril 2006, the conclusions of which can be summarised as follows:

(1) At the time Mr Ralph made his requests for information on the
2^nd February and 1^st March, the Council did not hold legal advice
in a recorded form. Therefore, there was no obligation to
provide it under FOI.

(2) Written legal advice had been received by the Council in the
form of an email dated the 18^th March 2005 (i.e. after Mr Ralph’s
request) and the Council had failed to comply with their
obligation to provide advice and assistance under section 16
FOIA as it had not explained in its letter of the 24^th March 2005
that a relevant email was in existence.

The Commissioner did not feel it necessary to address whether the
Council had correctly relied upon the exemption in section 42 FOIA in
relation to the legal privilege of the information in the email of the 18^thMarch 2005.

The First Appeal

6. By letter dated the 18^th April 2006, Mr Ralph appealed to the
Information Tribunal referring to various exchanges of correspondence
concerning the information that Mr Ralph sought. The letter included
the following:

“To obtain the information taken into account on the legal
position I wrote to Bexley on the 1^st March 2005 under
the Freedom of Information Act”

7. The Information Commissioner’s Reply, served as part of the appeal,
dated the 10^th May 2006 dealt solely with the question of the email of
the 18^th March 2005 and at a Case Management hearing on the 6^thJuly 2006 the Tribunal understood that the only information in issue
was the email of the 18^th March 2005. In accordance with the
Directions, the parties exchanged factual evidence, again the evidence
from the Commissioner and Mr Maughan for the Council, dealt with the
issue only of the legal advice of the 18^th March 2005. However, when
the parties provided skeleton arguments (i.e. a summary of the
arguments that they were going to put before the Tribunal) in advance
of the final hearing planned for the 2^nd November 2006, Mr Ralph
expressly stated that he did not want access to the email of the 18^thMarch 2005.

8. The final hearing was therefore adjourned and in its place a Case
Management hearing took place. The Council, the Commissioner and
the Tribunal had understood Mr Ralph’s appeal only to be in relation to
the legal advice. However, it was evident from the letters that Mr Ralph
had referred to in his Notice of Appeal, in particular the letter of the 1^stMarch 2005, that his original request for information was wider than
just a request for legal advice. As Mr Ralph was acting in person, the
Tribunal decided that it would not be fair to make Mr Ralph commence
the proceedings all over again. Accordingly further Directions were
made.

9. As neither the Commissioner nor the Council had carried out an
investigation into the existence of information other than the email of

the 18^th March 2005 the Tribunal set a timetable, with the consent of
the parties, to enable the Council to look for information and for the
Information Commissioner to prepare a further Decision Notice in the
light of the Council’s response to Mr Ralph. It was also hoped that a
final hearing might be avoided if the Council was able to satisfy Mr
Ralph’s request in any subsequent response.

10. The Tribunal also took the opportunity of asking the parties to formulate
precisely what information it was that Mr Ralph was seeking (this is set
out in the paragraph below).

The Information Relevant to the Second Appeal

11. For convenience, the Tribunal will refer to the procedure subsequent to
the Case Management hearing on the 2^nd November 2006 as the
“Second Appeal”. Included as the Schedule to the Order made
following the Case Management hearing on the 2^nd November 2006,
was a record of the information that was the subject matter of the
Second Appeal. This is as follows:

“Mr Ralph seeks the following information:

a. Information provided to Bexley Council raising
allegations about the abandonment of the lawful use
of the land; and

b. Information relating to the clarification of the issue of
abandonment of the land, other than the legal advice
referred in the recital to this Order [the email dated
18^th March 2005]; and

c. Information taken into account by planning officers in
formulating their recommendations to Bexley
Council’s Planning Committee relating to the
application for planning permission made by Mr
Ralph’s client in relation to the land, save insofar as
the information appears on the planning file.”

“The land” means a builders yard at the rear of No. 1 Parsonage Lane,
Sidcup.

“Mr Ralph client” means Mr David Wells [Mr Ralph’s client’s name].”

In this Decision the information requested will be referred to as “the
information in paragraphs (a), (b) and (c) of the Schedule.”

12. Mr Ralph, following detailed discussions with the Tribunal, had
confirmed that he no longer sought access to the legal advice in the
email of the 18^th March 2005.

13. Having made this Order, Mr Ralph made an application to the Tribunal
in the belief that paragraph (c) to the Schedule was too restrictive.
However, in a ruling of the 30^th November 2006, the Tribunal held that
Mr Ralph was incorrect in his interpretation and no order was made. A
copy of the ruling dated the 30^th November 2006 appears at the end of
this Decision.

14. By letter dated the 16^th November 2006 Mr Maughan, on behalf of the
Council, wrote to Mr Ralph providing him with copies of various letters,
which he said were on the planning file in any event and open to
inspection and was information covered under paragraph (a) of the
Schedule. The Council confirmed that it did not have any information
which fell within paragraph (b) of the Schedule. In relation to the
information that would be covered by paragraph (c) of the Schedule, Mr
Maughan provided photographs of the land and also a computer print-
out of the full history of the relevant land. Again, the details of this will
be referred to in the Decision below. However, Mr Maughan referred to
a letter (“the letter of 15^th February 2005”) that had been provided in
confidence and the Council claimed the exemption in section 41 of
FOIA in respect of that information. Namely, as the information was
confidential and its disclosure would constitute an actionable breach of
confidence, Mr Maughan stated that the Council was not obliged to
provide it to Mr Ralph.

15. The next step that the Directions had envisaged was that if Mr Ralph
was not content with the response from the Council, he would trigger
an application to the Information Commissioner. Unfortunately, it
seems there was some misunderstanding as to the next step and post
went astray, leading to a period of delay. However, in any event, the

Information Commissioner issued a Decision Notice dated the 28^thMarch 2007 and the conclusions can be summarised as follows:

(1) The Commissioner was satisfied that all information held by the
Council had been provided to Mr Ralph in accordance with
FOIA;

(2) The letter of 15^th February 2005 that had been withheld in fact
did not come within paragraphs (a), (b) or (c) of the Schedule.
Therefore there was no need to consider whether section 41
applied to it; and

(3) As the information sought concerned planning matters it fell
potentially to be dealt with under the Environmental Information
Regulations (EIR), but it would have made no difference to the
Commissioner’s conclusions to have followed that regime as
opposed to the regime in FOIA.

16. By letter dated the 29^th March 2007 to the Tribunal, Mr Ralph confirmed
that he did not accept the conclusion of the Decision Notice.

17. Accordingly, a further oral Case Management hearing was held on the
25^th April 2007. This hearing determined the issues in the appeal and
also a timetable to reach the final hearing. At that Case Management
hearing Mr Ralph made it clear that he would wish to have evidence
from the Chairman of the Planning Control Committee, Mrs Tonya
Kelsey and Mr David Smith, the Planning Officer who had dealt with
the planning applications and written key correspondence. It became
clear that the Council did not intend to call either of those individuals.
Furthermore, both of those individuals had refused Mr Ralph’s request
to attend the hearing voluntarily, and, therefore, the Tribunal issued
summonses requiring their attendance at the final hearing, on Mr
Ralph’s application.

18. The final hearing took place on the 13^th September 2007 and the
Tribunal heard from Mr Ralph and evidence was taken, on oath, from
the following individuals:

(1) Mrs Tonya Kelsey, Chairman of the Planning Control Committee
at the relevant time;

(2) Mr David Smith, Planning Assistant at the Council at the
relevant time;

(3) Mrs Susan Clark, Head of Development Control at the Council;
and

(4) Mr Andrew Maughan, Assistant Director of Legal Services at the
Council.

The Tribunal also had the benefit of an agreed bundle of documents
including witness statements from Mrs Clark and Mr Maughan and in
advance of the hearing, the written submission of the parties.

The Issues for the Tribunal

19. As Mr Ralph was acting in person, at the hearing on the 25^th April 2007
the Tribunal took time to identify the potential issues that Mr Ralph
could bring forward before the Tribunal at the hearing of the appeal.
Those issues were determined as:

(1) Was the Information Commissioner correct in determining that
the Freedom of Information Act was the relevant regime to
determine this application rather than the Environmental
Information Regulations 2004?

(2) Was the Information Commissioner correct in deciding that the
letter dated 15^th February 2005 was not relevant to the
information sought by Mr Ralph as set out in paragraphs (a), (b)
and (c) of the Schedule? In the event that it is relevant, was the
Council correct in the application of the exemption in section 41
of the Freedom of Information Act?

(3) Was the Information Commissioner correct in concluding that
the Council does not hold any further information of the type
sought by Mr Ralph, as set out in paragraphs (a), (b) and (c) of
the Schedule?

The Legal Basis for the Tribunal’s Jurisdiction

20. The Tribunal’s remit is governed by FOIA and in particular section 58,
which is also applied to appeals concerning environmental information
by regulation 18 of EIR. Section 58 is set out below:

“58 – Determination of Appeal.

(1) If on an appeal under section 57 the Tribunal considers –

a. that the Notice against which the appeal is brought
is not in accordance with the law, or

b. to the extent that the Notice involves an exercise of
discretion by the Commissioner, that he ought to
have exercised his discretion differently,

The Tribunal shall allow the appeal or substitute such other
Notice as could have been served by the Commissioner,
and in any other case the Tribunal shall dismiss the
appeal.

(2) On such an appeal, the Tribunal may review any finding of
fact on which the Notice in question was based.”

21. The starting point for the Tribunal is the Decision Notice of the
Commissioner, but the Tribunal also receives evidence, which is not
limited to the material that was before the Commissioner. The
Tribunal, having considered the evidence, may make different findings
of fact from the Commissioner and consider the Decision Notice is not
in accordance with the law because of those different facts.
Nevertheless, if the facts are not in dispute the Tribunal must consider
whether FOIA has been correctly applied. In cases involving the public
interest test, a mixed question of law and factors involved. If the facts
are decided differently by the Tribunal, or the Tribunal comes to a
different conclusion on the same facts, that would involve a finding that
the Decision Notice was not in accordance with the law. The Tribunal’s
powers are the same under FOIA and EIR.

Does the Council hold any Further Information (see paragraph 19(3) above)?

22. It is convenient to take this issue first. Mr Ralph’s view that the
Council does hold further information rests predominantly upon two
pieces of correspondence. First, a letter dated the 1^st December 2004
from Mr David Smith and secondly, the letter from Mr Maughan to Mr
Ralph dated the 24^th February 2005. These letters are discussed in
detail below. In relation to No. 1 Parsonage Lane, Mr Ralph had
originally submitted a planning application to build two semi-detached
properties. However, on the 19^th August 2004, by letter, Mr Ralph
requested the withdrawal of that application and to substitute an
application for a single dwelling. On the 18^th October 2004 Mr Ralph

also submitted an alternative application for planning permission for
commercial use of the land. Due to a misunderstanding at the Council
in relation to the substitution of the single dwelling proposal, that
application was not registered by the Council until the 18^th October, the
same time as the alternative application. In any event, that did not
make any difference as the registration was back-dated to the 19^thAugust 2004.

23. Mr Smith explained in his oral evidence that the planning officer’s role
is to deal with correspondence and to prepare a report on the planning
application that has been made. This report is included in what is
known as the “Agenda”, which is prepared for the Planning Control
Committee meeting at which the planning application is to be
considered (the “Agenda Report”). Mr Smith explained that at his level
of experience at the time, the Agenda Reports that he had completed
would have been reviewed and amended by various senior individuals,
including Mrs Clark. Mr Smith said that the planning file is where all
the documents relating to the planning application are kept, except any
legal advice. The Planning file includes the application form, letters of
notification to consultees and the responses. The letters both in
support and opposing the planning application are included on the file
as well as any plans and maps. Mrs Clark said that correspondence is
filed chronologically and at the end of the file is the decision of the
Planning Control Committee. All documents that are relevant to the
application, except legal advice, would be included on the file. Mrs
Clark explained that she would expect to have a full picture of the case
if she considered a planning file and if a planning officer did not include
any material on the file, it would be a disciplinary matter. Mrs Clark
explained that the Council does not instruct officers to keep other
records, although some officers will make draft notes, however, there
are no such documents on the files in relation to No. 1 Parsonage
Lane.

24. Mrs Clark explained that occasionally the planning department will
receive letters before a formal planning application has been made,
when a resident has “got wind” of a development. In those
circumstances, the letters are not placed on a planning file, as there is
not one, but they are kept in a pending file and then filed in the

planning file when an application for planning permission is received
and a planning file is created.

25. Mr Smith recalled that in the process of preparing the agenda for the
planning applications (i.e. of August and October), he had on the file a
letter dated the 21^st August 2004 from a Mrs W , which referred to the
proposed development of No. 1 Parsonage Lane. The letter was one
of the documents provided to Mr Ralph by the Council accompanying
their letter dated 16^th November 2006. The letter dated 21^st August
2004 recorded the writer’s understanding that the original application
had been withdrawn (the one for semi-detached properties), but that
there were proposals to develop an oast house design or to develop
the land for commercial use. The letter included the following:

“I wish to add one further point. I challenge the developer’s
view that this land has been in continuous use as a
builder’s yard. I believe that the use of the land as a
builder’s yard has primarily been through the “custom and
use” process. In this respect, for the last 10 years the yard
space has been full of old vehicles, rubble and detritus.
The photos attached to the developer’s original application
shows some of the story, but if I tell you that they represent
the yard in a much better light than it has been until now,
perhaps that will indicate to you what the previous situation
was.

The same is true of the buildings, many of which contain
old fridges that cannot be easily disposed off because of
their CFC content.

I therefore put to you that as it has been impossible to
trade or operate any recognised business from these
premises and especially impossible to use it as a builder’s
yard, that use for those purposes has lapsed.”

26. Mr Smith confirmed in his oral evidence that it was this letter, together
with the history files on the land and indeed, the submissions from Mr
Ralph himself that raised issues in his mind about the authorised use of
the site (i.e. the issue of “abandonment”). By letter dated the 1^st

December 2004 Mr Smith wrote to Mr Ralph that the two planning
applications were to be taken out of the agenda for the Planning
Control Committee on the 9^th December 2004. Mr Smith included the
following in his letter:

“The reasons for this are twofold. Firstly, I have sought
further guidance from the Council’s Legal Department
regarding issues of abandonment of the commercial use of
the site. Whilst I anticipated that that consultation
response would have been forthcoming before the
finalisation of the report, this unfortunately was not the
case. Given that the very special circumstances that you
put forward to allow the oast house application relates
specifically to the relative acceptability of a residential
dwelling as compared to a “Builders Yard” it is considered
essential to receive advice on the abandonment issues
before a fair and complete assessment of the proposals
can be achieved. This would also prove relevant in the
determination of the outline application. Therefore, it was
decided necessary to withdraw both applications from the
Planning Control Committee agenda – not just the outline
application as initially indicated.

Further to this, it was also considered prudent that form
TP2 be completed prior to determination. This is
considered necessary regarding the oast house application
so as to enable reasonable assessment of the impact of
the development on the openness of the Green Belt
relative to current circumstances. I appreciate that you are
currently compiling the required information and look
forward to receiving it.”

27. Mr Smith explained in his oral evidence that referring to the issue of
abandonment as “essential” was, with hindsight, perhaps not the best
phrase to use. At the time his inexperience on the issue of
abandonment meant that he thought it necessary to go to the legal
department and obtain clarification. He explained that if the issue was
raised in the Planning Control Committee, without it being explored in

advance, it could have resulted in a deferral of the application, he felt
for that reason, further advice on the issue was necessary.

28. Mr Ralph wrote to Mrs Clark on the 3^rd December 2004 expressing his
concern about the deferment of the planning applications and also the
fact that it had been suggested that “existing land use has been
abandoned”. In particular, Mr Ralph raised the issue that the Council
was still levying non-domestic rates on the land, confirming that it had
been rated for commercial purposes. Mr Ralph also wrote to his client
on the 6^th December 2004, including an explanation of abandonment
as follows:

“It seems that the applications are diverted into the
Council’s legal department under an obscure process
challenge of “abandonment”. The argument being that
there has been a cessation of the commercial use, which is
not a principle embodied in planning law, but based upon
historic court cases.”

29. On the 13^th December 2004 Mr Ralph wrote to Miss Philippa Gask, a
lawyer in the Council’s legal department. Mr Ralph included various
pieces of correspondence, including his letter to Mrs Clark, a letter from
Bexley’s Revenue Officer confirming the commercial rates (a point
referred to above) a letter from the previous owner setting out the
commercial use of the land and a further letter dealing with the non-
domestic rates.

30. The applications came again onto the agenda of the Planning Control
Committee, but on the 13^th January 2005 Mr Ralph wrote to Mrs Clark
requesting that the applications were taken out of the agenda “to allow
some corrections to be planning report [Agenda Report], and the
inclusion of information missing from the report and your file.” Mr
Ralph referred to an inaccurate and misleading comparison about floor
area and also indicated that the issue of abandonment was omitted
from the Agenda Report and that “all related letters and legal opinion
are missing.” Mr Ralph’s concern was that those missing documents
would prevent a balanced view of the application being seen by the
Planning Control Committee. Mrs Clark explained that the planning

applications were deferred at Mr Ralph’s request (i.e. not for another
reason).

31. Mr Ralph wrote again to Mrs Clark by letter dated the 31^st January
2005, including the following:

“… the planning agenda report on the 13^th January 2005
excluded any reference to the abandonment issue, which
delayed my client’s application, and the documents which
raised such an issue, and the legal clarification which you
obtained, were all missing from the planning file on the 13^thJanuary 2005.

It is a gross injustice to my client that the agenda report
included and emphasised letters of objection to an earlier
application, for a completely different scheme, withdrawn
on the advice of your department.”

32. On the 2^nd February 2005 Mr Ralph wrote to Mr Maughan as indicated
in paragraph 2 above, requesting access to documentation concerning
the issue of abandonment. Mr Maughan’s reply dated 24^th February
2005 was as follows:

“I note your request for access to documentation raising
doubts about the lawful use of the above land and a copy
of this department’s legal advice to the planning
department on the issue of abandonment.

As previously discussed in our telephone conversation of
13 January 2005 any advice from this department on this
legal issue is confidential legal advice and is therefore
exempt information immune from disclosure to the public.
The advice is therefore not kept on the planners file, which
is available for public inspection.

I can, however, confirm that the supporting information (up-
to-date rates etc) you sent to this office together with all
other information provided by the planning department has
been taken into account in the assessment of the legal

position and subsequent advice to the planning
department.

I understand that you have already been provided with
copies of the documentation raising doubts about the
lawful use of the land which contributed to the planning
department’s decision to request legal advice.”

33. At the hearing Mr Ralph confirmed that at the time he had not received
copies of any documentation, as the last paragraph of that letter
claims. Mr Maughan, in oral evidence, said that when he received Mr
Ralph’s letter he spoke to Miss Gask on the telephone and he believed
that at the time she had provided the legal advice. However, Mr
Maughan explained that in fact at this time she had only been asked for
the advice, but had not provided any written advice. Mr Maughan’s
letter was really dealing with the issue of release of legal advice per se.
Mr Maughan cannot recall how he came to write the last paragraph
quoted above, but he speculated that he had spoken to Philippa Gask,
or perhaps the planning officer, and thought that Mr Ralph had already
received the information on the planning file or perhaps had looked at
the planning file himself.

34. In fact, Mrs Clark confirmed that at the relevant time, the planning file
was only available by calling at the Council’s offices. Anyone could
look at the application forms and any technical detail, but not at third
party correspondence unless the inspection of the file was
approximately three days before the publication of the agenda that was
to be considered by the Planning Control Committee. Therefore, the
correspondence from third parties (supporting and/or objecting to the
application) would have been available to Mr Ralph on the planning file
at some time in January 2005 before the application that was due to
take place on the 9^th. Mrs Clark said her understanding was that Mrs
Ralph had been sent the documents that were on the planning file,
including the third party correspondence.

35. Mr Maughan explained that he asked Miss Gask whether she had
looked at all the information that Mr Ralph had provided and that she
replied “yes”. Mr Maughan explained that at the time he did not have a
view one way or the other as to whether abandonment was essential to

the determining of the planning application. It was simply that a
colleague had been asked to give advice on this issue and that he was
trying to be helpful and believed that Mr Ralph would have had access
to the planning file.

36. Mrs Clark explained that the planning application in January was re-
scheduled because she thought it was important not to delay the
application and was satisfied that the Agenda Reports dealt with all of
the issues sufficiently. She explained that over this period there had
been some discussion amongst planning officers about the case. She
had indeed had a discussion with the lawyer and received verbal
advice, although nothing in writing. Mr Ralph had also complained
previously about the time that the applications were taking and her
view was, on the basis of her appraisal of the situation, and the
discussions with senior legal advisers that the planning applications
could go ahead. Mrs Clark confirmed that there were no notes of these
conversations. However, Mr Maughan explained that this was perfectly
usual practice in the context of the Council’s legal advisers. Mr
Maughan explained that the lawyers were not separate from the
Council and did not receive formal instructions in the way that outside
solicitors might do. The lawyers went to meetings and gave advice
orally all the time to officers and councillors. The issue was discussed
with Miss Gask, as senior lawyer and part of the legal team and it
would not have been done terribly formally. In the lawyers mind, the
advice is given and then it is, in this case, Mrs Clark’s responsibility to
form a conclusion about how best to act and then act accordingly. Mr
Maughan again confirmed that the advice that Miss Gask had given
was verbal and was not followed up in an email until the 18^th March
2005. This is the email that was the subject matter of the “first appeal”
and Mr Ralph does not seek access to it.

37. Mrs Clark wrote to Mr Ralph by letter dated the 18^th April 2005
confirming that both applications were scheduled to go before the
Planning Control Committee for a decision on the 21^st April 2005 and
she enclosed copies of both Agenda Reports. Included in that letter is
the following text:

“… whilst you seek guidance on a form of residential
development that might receive the Council’s support, I

think it is important at this stage to clarify that the Council
do not at present share your opinion of the established use
of the site. Any commercial use of the site is historical and
has never received formal planning permission or gained
established use rights. The site itself is derelict and run
down, with several dilapidated buildings/sheds scattered
randomly. On the basis of the information and evidence
available, the Council believe that there is no substantive
argument that the premises has been operating in recent
times as a full builder’s yard with associated workshop.”

38. There is also reference to Mrs Clark’s opinion that the proposed
residential development is unlikely to be consistent with the
development in the Green Belt.

39. On the 21^st April 2005 Mr Ralph wrote to Mrs Clark again requesting
that the two planning applications were not put before the Planning
Control Committee on that day. Documentation implies that Mr Ralph
had not provided the reasons for wanting to have the applications
again postponed, but Mrs Clark accepted in oral evidence that he had
provided reasons and apologised to Mr Ralph that the documentation
did not reflect this position. However, in any event, the planning
applications did go before the committee and the planning officer’s
recommendations were accepted and the applications rejected.

40. The Tribunal had before it a copy of the Agenda Reports for the two
relevant planning applications. It is common ground that neither of
those reports include the word “abandonment” or “abandon”. Mr Smith
stated that he did not consider it necessary to include the word within
the report. He explained that he had considered the issue and drafted
the report to reflect the legal advice that he had been given. Mr Ralph
queried how that could be the case when, in his letter of the 1^stDecember, he had referred to the issue of abandonment as being
“essential”. Mr Smith explained that he would have drafted the initial
report but that other officers would have amended it following briefings
and advice. However, he believed it was substantially the same as the
report he had prepared in January. Mr Smith said that even in
retrospect he thought the report was balanced and dealt with the issue
of abandonment, although the word was not mentioned.

41. Mr Smith explained that both Agenda Reports set out the history of the
use of the site and have sections about the “relevant planning history”.
For example, in the residential use application the following is
included:

“There are no current planning restrictions that would
control activity on site as any commercial use is historical
and it has never received formal planning permission nor
gain established use rights. The site itself is derelict and
run down, with several dilapidated buildings/sheds
scattered randomly.”

In the report on the commercial application it includes a section headed
“Relevant Planning History” and in the section entitled “Special
Circumstances” sets out Mr Ralph’s argument of the use as an
established builder’s yard. It refers to the non-domestic rates and the
letter from the previous owner about the use of the land. The
conclusion however, is “any commercial use of the site is historical and
has never received formal planning permission or gained established
use rights”. These are examples and there are other references to
change of use.

42. Mrs Clark explained that the Agenda Reports clearly set out the
Council’s view as to the previous use of the land and the planning
officer’s judgement. Mrs Clark said that she believed the Agenda
Reports stated that there was no planning permission nor established
use and referred to the state of the site. Her view was that the site had
“no use” and that an application to the Planning Control Committee
was not the correct forum for establishing the legal use of the land.
Mrs Clark specifically said that she deliberately avoided using the word
“abandonment” in Planning Committee Agenda Reports as it was a
specific legal term. It carried with it legal ramifications and therefore
she was concerned not to use it. The issue was what can the site be
used for and that is what was set out in the Agenda Reports. Mrs Clark
said she also had in mind that she did not want to cause the Council
difficulties by apparently coming to a conclusion on the lawful use of
the land by using the word “abandonment” as it could be alleged that
the Council had made up its mind about a particular use, when in fact

that was not the correct route to establish the legal use of the land.
The correct application was to make an application for a “legal use
certificate” which indeed, was now taking place in relation to No. 1
Parsonage Lane. Mrs Clark was concerned that “abandonment”
should not be used as shorthand, meaning the use of the land has
changed. Mrs Clark also confirmed that the Agenda Reports did reflect
the advice that she had received.

43. The Tribunal heard evidence from Mrs Kelsey, who was the Chairman
of the Planning Control Committee on the 21^st April 2005. Mrs Kelsey
could not recall this planning application, as such, although she did
recall the events of the 21^st April 2005.

44. Mrs Kelsey explained that prior to the Planning Control Committee
there would have been a briefing meeting with the Chair of the
Committee, planning officer, the opposition spokesman and the Vice-
Chair of the Committee. The Agenda, including the Agenda Reports,
would have been available in draft form. The planning officer would
have had the planning file available, in the event that any of the
Councillors wished to see further information from that file. The
purpose of the meeting was to determine how the Planning Control
Committee was to be chaired and also to identify any issues that might
need to be addressed in order to avoid any delays or adjournments at
the final committee. Mrs Kelsey made it clear that this was not a
meeting to make the decision, which would then be “rubber stamped”
later by the full committee.

45. At a Planning Control Committee meeting there was a particular
structure to the way the applications were dealt with. The application
would be introduced by a planning officer, at the time, using an
overhead display. The meetings were open to the public, hence the
presentation. There was then an equal opportunity for the supporters
and objectors to give their comments. After the objectors, local
councillors could speak for or against the application. The committee
might ask a question, which often related to traffic, and if possible, it
would be answered at the committee. Members of the committee
would then have a discussion, albeit without public involvement, and
when Mrs Kelsey felt that all the members of the committee had had

their say, she would move to a vote. She followed this plan rigidly and
never changed it.

46. Mrs Kelsey explained that if legal advice on any relevant issue was
obtained, it would be in the Agenda Report as if it was not in the report,
it would not be available to the members as they only had the Agenda
Reports. There was, however, a solicitor at the committee who could
deal with issues if they were raised and give a view. The solicitor
would speak for the Council and that would be in public.

47. Mrs Kelsey explained that she could not recall whether there was any
separate legal advice on 21^st April 2005 relating to the two planning
applications. However, if there had been, it would have been in the
Agenda Report and not given in any other form. Mrs Kelsey said that
she would expect to see in the Agenda Reports all the issues raised
that were relevant to that application. However, she could not
remember specifically about the abandonment issue in this application.

48. Mrs Kelsey was absolutely clear that she would not have tolerated any
attempt by planning officers or others to persuade the Planning Control
Committee to make a particular decision in relation to any planning
application. She explained, in any event, that this would be impossible,
given the number of members of the committee and the fact that it was
put to a vote. Mrs Clark absolutely refuted any suggestion that she
would try to influence the outcome of a Planning Control Committee’s
decision.

49. The Agenda Reports included the recommendations of the planning
officer and the reasons the planning officer had to come to his/her
conclusion. Mrs Kelsey explained that usually the committee adopted
those reasons, although it might form reasons of its own. Mrs Clark
confirmed that the reasons that appear in the Agenda Reports of the
two planning applications were in fact the reasons that were adopted
by the Planning Control Committee and appear in the formal record of
the committee’s decision of 21^st April 2005. The reasons that were
adopted may be summarised as rejecting the planning applications on
the basis that they do not meet the requirements for development in
the Green Belt.

50. Mr Smith confirmed in his oral evidence that, looking at the Agenda
Reports now, he would not consider that there are any issues that had
not been covered. Mrs Clark was also of the same view. Mr Smith left
Bexley in March 2006 and was therefore not able to answer any
questions about what was in fact contained within the planning file, but
he confirmed it was not his practice to keep anything away from the
planning file, apart from written legal advice. However, looking at the
documents before him at the Tribunal, he did not think there was
anything apparently missing, or anything that he would expect to be
present. Mr Smith also confirmed that he had not destroyed or hidden
any information, when questioned on this point by the Tribunal.

51. Mrs Clark also gave evidence to the Tribunal about the planning file
and the searches that she had undertaken in order to respond to this
appeal. Mrs Clark said that she obtained a computer print-out from
1987 onwards about No. 1 Parsonage Lane. She then went through all
the planning files for the applications that were included. She also
looked at the enforcement files, which are kept separately. There had
been enforcement action taken by the Council in 1990 and so there is
such a file about No. 1 Parsonage Lane. Mrs Clark explained that she
went through everything herself, to see if there was any documentation
that would be relevant to Mr Ralph’s application. She also looked at
the general street files, which contain queries and other
correspondence that do not relate to any planning application, but to
the street or properties in that street. Mrs Clark explained she looked
at the street file for Parsonage Lane and North Cray Road, which is
nearby. This was to make sure that nothing had been misfiled. Mrs
Clark said that she could not think of anywhere else to look other than
the places that she had searched.

52. Mr Maughan explained that he had met with Mrs Clark to discuss the
extent of the search. Given the appeal, Mrs Clark had searched more
widely than might have been required, but Mr Maughan was happy that
this was a sensible approach and that she had done a proper search.

53. Mr Maughan explained in oral evidence that he is not a planning
lawyer, but at the time there were two such specialists in his
department. He had checked that no further written advice had been
given apart from the one email of the 18^th March 2005. Mrs Clark said

that she found the planning file as she expected it and there was
nothing that seemed to be missing. Mrs Clark confirmed that she was
at the pre-meeting before the Planning Control Committee and also
present at the relevant Planning Control Committee meeting. She
confirmed to the Tribunal that there was no recorded information other
than that which had been made available and nothing was missing. Mr
Ralph confirmed that he was not making any allegation that anyone
had deliberately destroyed information.

54. Mrs Clark confirmed that all information had been made available to Mr
Ralph, apart from the email dated the 18^th March 2005, which is not the
subject matter of this appeal and the letter dated 15^th February 2005
that has been withheld (to be dealt with below). Mrs Clark confirmed
that nothing would have been taken out of the file and the only things
that had been added to the file were ongoing correspondence, as the
file was still an active one. Mrs Clark’s view was that there was nothing
else to provide to Mr Ralph. Mrs Clark specifically confirmed that in
relation to paragraphs (a), (b) and (c) in the Schedule, that there was
no information in recorded form, whether legal advice or non-legal
advice, other than that which had already been provided to Mr Ralph.
Mr Maughan, in his evidence, said that he could not recall a time when
members had decided a case against the advice of the legal
department. He also said that the there was often a large degree of
cross-over between “legal advice” and “planning officers’ views”.
Having read the Agenda Reports Mr Maughan’s view was that there
was a clear indication of what the legal advice had been on the use of
the land and that the Council did not believe there was an existing use.
Mr Maughan was confident that in responding to the Schedule, the
Council had been through all of the information available. He had no
idea what information it was that Mr Ralph was looking for. In his view,
it simply did not exist.

55. Understandably, Mr Ralph asked why nobody had informed him before
now that no information was available. Mrs Clark said that it simply did
not occur to her that she should write to him because in her own mind
the issue of abandonment had been dealt with in the Agenda Reports,
as referred to above. Mr Maughan said that the reason he had not
written to Mr Ralph along those lines, was because until the Tribunal
hearing on the 2^nd November 2006 he was under the impression that

the only thing Mr Ralph was seeking was the email of the 18^th March
2005 and therefore that is what he had focussed on. He could not
have therefore written informing Mr Ralph that information did not exist
because he believed it did in the form of that email.

The Relevant Law

56. Section 1(1) FOIA states:

“Any person making a request for information to a public
authority is entitled—

(a) to be informed in writing by the public authority whether it
holds information of the description specified in the request, and

(b) if that is the case, to have that information communicated to
him.”

What amounts to “information” is set out in section 84 as follows:

“information” (subject to sections 51(8) and 75(2)) means
information recorded in any form;

Sections 51(8) and 75(2) are not relevant.

The Environmental Information Regulations 2004 (EIR) set out at
Regulation 5 the duty to make available environmental information on
request and, subject to certain exceptions, it states that “…a public
authority that holds environmental information shall make it available
on request.” Regulation 2(1) states that ““environmental information”
has the same meaning as in Article 2(1) of the Directive, namely any
information in written, visual, aural, electronic or any other material
form…”

Therefore, whether this case is determined under FOIA or EIR Mr
Ralph is entitled to any information that is covered by paragraphs (a),
(b) and/or (c) of the Schedule where this has been recorded and is held
by the Council. Information that has not been recorded does not have
to be provided.

The Submissions

57. Mr Ralph’s submissions may be summarised as follows:

a. Mr Smith, in his letter of the 1^st December 2004, had referred to
the issue of abandonment as being “essential”. That issue was
missing from the Agenda Reports and as it was very relevant to
the determination of the applications, it must exist, but not have
been provided to him.

b. Documentation which he had provided to Philippa Gask and
documentation raising doubts about the lawful use of the land
were missing from the planner’s file in January 2005 and not
reported in the planning committee agenda for the 13^th January
2005. Therefore other documents were likely to be missing.

c. Mr Maughan’s letter of the 24^th February 2005 states: “I
understand you have already been provided with copies of the
documentation raising doubt about the lawful use of the land,
which contributed to the planning department’s decision to
request legal advice” and this therefore confirms the existence
of documentation. It must have been available when the
meeting was re-scheduled for the 13^th January 2005. Mr Ralph
also submits that planning law requires information that is
essential to the determination of an application to be retained
and that if the use of the land was unlawful, it would have been
on Bexley’s file.

58. The Commissioner’s arguments were that it was clear on the evidence
that no further information existed. The misunderstanding by Mr
Maughan that all Mr Ralph was after was the legal advice, explains
why Mr Ralph was not told earlier that information did not exist. This is
supported by the evidence about the planning file and what would be
on such a file. The surrounding evidence was consistent with this
conclusion.

59. Mr Cornwall, for the Council, submitted the issue of abandonment had
clearly been raised by Mrs W’s letter of the 21^st August 2004, referring

to abandonment, albeit in layman’s terms. There is nothing to raise a
suspicion that other documents existed.

60. We have summarised the written and oral submissions of the parties
quite shortly, but we have taken the submissions into account in full.

Findings

61. Having considered the bundle of documents, the witness statements of
Mrs Clark and Mr Maughan and having heard the oral evidence of the
witnesses, the Tribunal’s conclusion is that there is no further recorded
information of the type sought by Mr Ralph, as set out in paragraphs
(a), (b) and (c) of the Schedule to the Order of the 2^nd November 2006.

62. As to the information in paragraph (a) of the Schedule, Mr Smith was
clear that it was the letter dated 21^st August 2004, that raised the issue
of abandonment. It does not use the word, but clearly goes to the
cessation of a use and use only being through custom and practice.
This letter, although dated before both planning applications were
registered by the Council (see paragraph 22 above) was clearly written
in contemplation of those applications. Accordingly we conclude this is
the information sought under paragraph (a) of the Schedule and this
has been provided to Mr Ralph by the Council.

63. As to paragraphs (b) and (c) of the Schedule, Mr Smith could not say
specifically that there was nothing else in the file, because he no longer
had access to it and it was some time ago that he did. However, he did
indicate that, in his view, there was nothing apparently missing from the
papers. Mrs Clark gave evidence that there was nothing missing from
the planning file. In addition, there was nothing unusual when she
looked at the file to give her an indication that something might have
been missing. Mr Maughan confirmed that nothing further existed in
his view. This is supported by the fact that the reasons for rejecting the
planning applications related to the Green Belt and not abandonment.
There is therefore no reason to suspect further documents exist, or
existed, about abandonment as it was not as essential as Mr Smith had
originally said it was.

64. Furthermore, although the Agenda Reports for the two planning
applications do not refer specifically to “abandonment”, the Tribunal is
satisfied that those reports do in fact deal with the issue that Mr Smith
raised in his letter of the 1^st December 2004. Namely, whether or not
the land had been continuously used for certain purposes or whether
the use of the land had changed and whether or not the land had
existing planning permission. It is particularly relevant to note Mrs
Clark’s evidence, that the Council specifically avoided using the word
“abandonment”. Therefore, to the extent that the consideration of the
issue was “essential” it had been considered and did feature within the
Agenda Reports. We do not accept Mr Ralph’s interpretation of this
correspondence or the Agenda Reports.

65. We are also satisfied on the evidence that the legal advice or other
advice had been provided to planning officers orally and it was not until
the 18^th March 2005 that the legal advice was recorded in an email.
Documents may have been missing from the planning file in January
when Mr Ralph inspected it but we are satisfied that all the information
available had formed part of the Agenda Reports and Mr Maughan’s
evidence was that he had confirmed with Miss Gask that she had taken
into account Mr Ralph’s information. In any case, we do not see that
the absence of certain documents from the planning file in January
2005 means that one or more further documents about abandonment
have not been provided to Mr Ralph and are being deliberately
withheld by the Council.

66. Mr Maughan’s letter of the 24^th February 2005 is clearly unfortunately
worded. However, we are satisfied that this is no more than Mr
Maughan indicating that he was not prepared to release the legal
advice, even though he did not appreciate at the time that this advice
had not been reduced to writing. Furthermore, nobody told Mr Ralph of
the non-existence of further information as first, it seemed that Mr
Ralph was in fact seeking the email dated 18^th March 2005. It only
became clear this was not the case in November 2006. Secondly, the
Council believed Mr Ralph had seen everything else it had, which was
in the planning file. Accordingly, we do not see any evidence to
suggest that Mr Maughan was, at that time, referring to some further
documentation, which is being withheld.

67. The Tribunal is also of the view that there is no evidence to suggest
that the planning file has been tampered with or documents destroyed,
whether deliberately or inadvertently. The Tribunal is also satisfied that
those who gave evidence before it, under oath, did so honestly and to
assist the Tribunal as best they could. The Tribunal found no reason to
suspect dishonesty or a deliberate attempt to mislead anybody.

68. The Tribunal is also satisfied that the searches conducted by the
Council comfortably satisfy the requirement for a reasonable search
and that the Council’s conclusion that they do not hold any further
information (as referred to in the Schedule) is reasonable. The
Tribunal’s conclusion is that, on a balance of probabilities the Council
does not hold any further information. In fact, it is more likely than not
that the Council never held any information, within the meaning of
FOIA, that fell within the category of paragraph (b) of the Schedule.

Was the Information Commissioner correct in deciding that the withheld letter
was not relevant to the information sought by Mr Ralph (see paragraph 19(2)
above)?

69. In accordance with the Directions, the Council disclosed to the Tribunal
the letter dated 15^th February 2005, which it had withheld and which is
referred to in the Decision Notice of the Information Commissioner, at
paragraph 19. The letter was not supplied to Mr Ralph. The
Information Commissioner and the Council produced confidential
submissions for the Tribunal on that piece of correspondence.

70. The letter is addressed to Mrs Clark and comes from a source external
to the Council. It is not necessary for us to set out in detail the content
of that letter, and indeed, given our conclusion on this issue it would
not be appropriate to do so. Nevertheless, the letter does refer to the
two planning applications made by Mr Ralph on behalf of his client and
does including the word “abandonment”, but only to ask what it means.
In the course of the hearing the letter was shown to Mr Smith, who had
the opportunity to read it. His evidence was that he did not believe that
the content of the letter would have contributed to the
recommendations he made and he would not have taken it into
account in formulating those recommendations. Mrs Clark was also
shown the letter, with which she was familiar. Mrs Clark confirmed that

she had read it at the time of the planning applications, but she did not
believe it added anything of substance. She stated that it took no part
in formulating the planning officers’ recommendations and in fact, Mrs
Clark said that she remembered this quite clearly.

71. The Tribunal’s conclusion is that the letter of the 15^th February 2005 is
obviously confidential. The contents of the letter are not about
abandonment nor does it raise abandonment as an issue concerning
the land No. 1 Parsonage Lane. It is not a document failing within
paragraph (a) of the Schedule. It is clearly not a document within
paragraph (b) of the Schedule either. Furthermore, the Tribunal
accepts the evidence of Mr Smith and Mrs Clark that this letter took no
part in formulating their recommendations to the Planning Control
Committee. The Tribunal is supported in this as on our own
assessment, it could not be said to be relevant information.
Accordingly it is not within paragraph (c) of the Schedule. The
Tribunal’s conclusion is that the Information Commissioner was correct
to conclude this letter was not covered by the request for information.

Conclusion

71. Given our conclusions on the issues set out in paragraphs 19(2) and
(3) we do not need to consider the issue at paragraph 19(1). In relation
to whether the Council holds information the outcome is the same
under FOIA and EIR.

72. Mr Ralph has been clear throughout these proceedings that he feels
that the client for whom he acted has suffered an injustice as a result of
the rejection of the planning applications. Mr Ralph has made various
criticisms about the planning process. However, this Tribunal’s
jurisdiction only extends to information that has been recorded and a
Public Authority’s obligation to provide it under FOIA and EIR. Mr
Ralph is convinced that because the issue of abandonment was raised,
that there must be some written documentation referring to that issue
and he has not had access to it. Whilst we can understand how Mr
Ralph came to question the existence of information, the Tribunal is
satisfied, having considered the evidence, that this further information
does not exist in recorded form and the Council has provided to Mr

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	United Kingdom Information Tribunal including the National Security Appeals Panel
You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> Ralph v Information Commissioner and Bexley Council [2007] UKIT EA_2006_0020 (4 October 2007) URL: http://www.bailii.org/uk/cases/UKIT/2007/EA_2006_0020.html Cite as: [2007] UKIT EA_2006_20, [2007] UKIT EA_2006_0020



	Information Tribunal Appeal Number: Case No. EA/2006/0020 Information Commissioner’s Ref: FS50153564 Heard at the Finance & Tax Tribunal Bedford Square London Decision Promulgated On 13^th September 2007 4 October 2007 BEFORE DEPUTY CHAIRMAN Peter Marquand and LAY MEMBERS Gareth Jones Steven Shaw B E T W E E N : MR GEORGE RALPH Appellant and THE INFORMATION COMMISSIONER Respondent and THE LONDON BOROUGH OF BEXLEY Additional Party Representations:

	For the Appellant: For the Respondent: For the Additional Party:	In person Paul Nichols, Counsel James Cornwell, Counsel

	1



	“58 – Determination of Appeal. (1) If on an appeal under section 57 the Tribunal considers – a. that the Notice against which the appeal is brought is not in accordance with the law, or b. to the extent that the Notice involves an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, The Tribunal shall allow the appeal or substitute such other Notice as could have been served by the Commissioner, and in any other case the Tribunal shall dismiss the appeal. (2) On such an appeal, the Tribunal may review any finding of fact on which the Notice in question was based.” 21. The starting point for the Tribunal is the Decision Notice of the Commissioner, but the Tribunal also receives evidence, which is not limited to the material that was before the Commissioner. The Tribunal, having considered the evidence, may make different findings of fact from the Commissioner and consider the Decision Notice is not in accordance with the law because of those different facts. Nevertheless, if the facts are not in dispute the Tribunal must consider whether FOIA has been correctly applied. In cases involving the public interest test, a mixed question of law and factors involved. If the facts are decided differently by the Tribunal, or the Tribunal comes to a different conclusion on the same facts, that would involve a finding that the Decision Notice was not in accordance with the law. The Tribunal’s powers are the same under FOIA and EIR. Does the Council hold any Further Information (see paragraph 19(3) above)? 22. It is convenient to take this issue first. Mr Ralph’s view that the Council does hold further information rests predominantly upon two pieces of correspondence. First, a letter dated the 1^st December 2004 from Mr David Smith and secondly, the letter from Mr Maughan to Mr Ralph dated the 24^th February 2005. These letters are discussed in detail below. In relation to No. 1 Parsonage Lane, Mr Ralph had originally submitted a planning application to build two semi-detached properties. However, on the 19^th August 2004, by letter, Mr Ralph requested the withdrawal of that application and to substitute an application for a single dwelling. On the 18^th October 2004 Mr Ralph

	9



	Ralph the information it holds that is relevant to his requests. Our decision is unanimous. 73. Accordingly, this Appeal is dismissed and the Decision Notice of the Information Commissioner is upheld.

	Peter Marquand Deputy Chairman Dated: 4 October 2007

	29

United Kingdom Information Tribunal including the National Security Appeals Panel