First-tier Tribunal (General Regulatory Chamber)

Neutral Citation Number: [2025] UKFTT 335 (GRC)

Case Reference: EA/2023/0110

First-tier Tribunal

General Regulatory Chamber

Information Rights 

 

Heard by: CVP Remote Hearing

Heard on: 5 January 2024

Decision given on: 17 March 2025

Before

 

TRIBUNAL JUDGE JACQUELINE FINDLAY

TRIBUNAL MEMBER ANNE CHAFER

TRIBUNAL MEMBER PIETER DE WAAL

 

Between

 

JOHN SHIPP

Appellant

and

 

THE INFORMATION COMMISSIONER

First Respondent

Representation:

The Appellant: Mr John Shipp

Present: Mr Nicholas Shipp

Respondent: The Information Commissioner not represented

 

Decision

 

The appeal is allowed. The Tribunal finds that the Commissioner made an error of law in finding, in the absence of adequate evidence, that on the balance of probabilities, the Council does not hold the information requested in the Request.

 

The Substitute Decision Notice below is substituted for the Information Commissioner's Decision Notice dated 24 January 2023.

 

To:   Huntingdonshire District Council (the Council)

Pathfinder House

St Mary's Street

Huntingdon

Cambridgeshire

PE29 3TN

 

By email to: [email protected]

 

By Decision reference EA/2023/0110 of the First-tier Tribunal, General Regulatory Chamber (Information Rights), the Tribunal is, on the balance of probabilities, not satisfied that the Council does not hold the information requested in the Request.

 

The Council is directed to:

1)    Reconsider its analysis of Mr Shipp's Request in the light of the Tribunal's Decision.

2)    Rigorously and efficiently interrogate its records including emails, memos and minutes of meetings in all material forms (including electronic and hardcopy) to identify the steps taken and timescales involved to implement and, in particular, to discharge Condition 27.

3)    Provide a fresh response to Mr Shipp's Request.

 

No further directions are necessary.

 

The Council must take these steps within 28 calendar days after the date when this Decision is sent to the parties and the Council. Any failure to abide by the terms of the Tribunal's Substituted Decision may amount to contempt which may, on application, be certified to the Upper Tribunal.

REASONS

 

Background and Request

 

    1.        This appeal is brought under section 57 of the Freedom of Information Act 2000 (FOIA) against the Commissioner's Decision Notice dated 24 January 2023 (the DN) with reference IC-185310-D5D1 which is a matter of public record.

 

    2.        The Tribunal conducted a hearing by CVP, considered an Open Bundle and heard  submissions from Mr Shipp. The Commissioner was not represented and the Tribunal found no injustice in proceeding in the absence of representation.

 

    3.        The Tribunal took into account all the evidence before it and made findings on the balance of probabilities.

 

    4.        Mr Shipp requested information held by the Council about the discharge of a particular condition attached to the planning permission for a local housing development. The full details of the background to this appeal, Mr Shipp's requests for information and the Commissioner's decision are set out in the DN.

 

    5.        On 7 May 2022 Mr Shipp made a FOIA Request of the Council in the following terms:

 

"Please can you give the details of how and when the implementation part of the requirement contained in Clause 27 [Condition 27] of Planning Permission 1401659OUT was discharged."

 

    6.        The Council responded on 10 May 2022 directing Mr Shipp to the on-line planning portal. It indicated that all the information it held that was within the scope of the Request was available on the planning portal.

 

    7.        The Council's internal review response of 16 November 2022 upheld the original decision indicating that all the information held was available on the planning portal.

 

    8.        Mr Shipp states that he believes that the information published online is not complete and that further information is held about matters relating to Condition 27 of the relevant planning application.

 

The Decision Notice

 

    9.        The Commissioner stated in the DN that he is satisfied that the Council does not hold any information in addition to that which was already on its website. The Commissioner was satisfied that, on the balance of probabilities, the Council did not hold any additional information relevant to the Request.

 

 10.        The Council had failed to provide its internal review response within 40 working days and it had breached regulation 11(4) of the Environmental Information Regulations 2004 (the EIR).

 

 11.        The Commissioner did not require the Council to take any steps as a result of the DN.

 

 12.        The Commissioner stated that the information requested relates to a planning application and it is the Commissioner's view that the information falls within the definition of 'measures' set out in regulation 2(1)(c) which will, or will be likely to, affect the environment.

 

 13.        Therefore, whilst reference to the FOIA is made in the various sets of correspondence sent between the two parties, the Commissioner considers that the request is for environmental information, and that the EIR is the appropriate access regime.

 

 14.        The Council has confirmed to Mr Shipp that it has carried out a complete check of its system and that there is no further information to disclose.

 

 15.        Mr Shipp has stated that he believes that the Council should have provided additional information about the discharge of Condition 27 in response to the Request, He says that the Council should have either confirmed that it has no record of having received an application to discharge Condition 27, or that this Condition can now only be discharged by following a certain procedure requiring a further application.

 

 16.        The Commissioner states he is only required to make a determination as to whether the Council has identified all the recorded information it holds that is relevant to the Request; he cannot require a public authority to write explanations in response to an information request.

 

 17.        The Council has explained to the Commissioner the background to the Request and why it should not be expected to hold any additional information within the scope of the request to the information available on the planning portal. Having considered that explanation and in the absence of any evidence to the contrary, the Commissioner is satisfied that the Council has located all the information it holds that is relevant to Mr Shipp's Request.

 

 18.        The Commissioner therefore concludes that, on the balance of probabilities, the Council has disclosed all the information that it holds that is relevant to the Request.

 

Legal framework

 

 19.        Regulation 5 - duty to make environmental information available on request. Under regulation 5(1) of the EIR, and subject to a number of EIR provisions, a public authority which holds environmental information shall make it available on request.

 

 20.        When determining whether or not information is held the Tribunal applies the normal civil standard of proof, on the balance of probabilities. The First-tier Tribunal has repeatedly confirmed that this is the relevant test: Linda Bromley v the Information Commissioner and the Environment Agency (EA/2006/0072), Malcolm v Information Commissioner EA/2008/0072, Dudley v Information Commissioner EA/2008/008, and Councillor Jeremy Clyne v IC and London Borough of Lambeth EA/2011/0190. The Upper Tribunal in Andrew Preston v Information Commissioner and Chief Constable West Yorkshire Police [2022] UKUT 344 (AAC) approved the approach in the above cases.

 

 21.        If environmental information is not held then the request may be refused under regulation 12(4)(a) EIR.

 

 22.        The role of the Commissioner and Tribunal is not to decide whether or not the Council should hold the information, but whether, on the balance of probabilities, it does or does not hold it. The EIR do not require the Council to create information to answer a Request although it may have to bring information together from different sources.

 

 23.        In reaching its decision the Tribunal took into account all the evidence before it whether or not specifically referred to in this Decision. The Tribunal applied the legislation and relevant case law. The role of the Tribunal is to consider whether the Commissioner's DN is in accordance with the law. The Tribunal may review any finding of fact on which the DN was based. The Tribunal can review all the evidence before it and makes its own decision.

 

Grounds of Appeal

 

 24.        Mr Shipp puts forward the following points:

 

a)    The information held within "Ref No. 17/80218/COND" relates only to the 'discharge' of Condition 27 and not to the implementation of Condition 27.

 

b)    The implementation process would have involved various organisations, paperwork and forms.

 

Commissioner's Grounds of Opposition

 

 25.        The Commissioner puts forward the following points:

 

a)    Mr Shipp is expecting to see correspondence between various organisations, paperwork and forms relating to the implementation of Condition 27. In the Tribunal's decision in Bromley v Information Commissioner & the Environment Agency (EA/2006/0072) it was accepted that it was rarely possible to say with absolute certainty that a public authority did not in fact hold requested information somewhere in its records, but that, provided a search had been undertaken which was sufficiently rigorous, and the information had still not come to light, it was to be regarded on the balance of probabilities, as not held for the purposes of FOIA.

 

b)    Mr Shipp sets out the information he believes the Council should hold, however, this does not necessarily mean the Council does hold it.

 

c)    Mr Shipp has provided no evidence to prove that the Council does hold the information sought.

 

d)    The Council stated in 2020 that they could not find any information held in relation to the implementation of Condition 27. In 2022, they confirmed that any information held relating to Condition 27 is only held in "Ref No. 17/80218/COND" in the planning portal on its website.

 

e)    The Council has also confirmed that a complete check of their system has been undertaken when searching for the requested information. The Commissioner submits that this kind of in depth search can be defined as 'sufficiently rigorous'.

 

The Hearing

 

 26.        Mr Shipp expanded on his grounds of appeal to the Tribunal. He brought to the attention of the Tribunal the contents of an email from the Council dated 9 February 2018 which stated that the new properties could be occupied. He urged the Tribunal to consider that the decision could not have been made unless Condition 27 had been discharged and it would be difficult to agree such a complex programme and discharge it without there being information.

 

 27.        Mr Shipp argued that the Council has overall responsibility for the implementation and discharge of Condition 27, he has been given conflicting information, and it is inconceivable that a road could be shut for 12 weeks without there being any paperwork connected to the decisions made. The closure of a public highway or footpath for any length of time is a serious matter and many people must have been consulted.

 

Conclusions

 

 28.        The Tribunal agrees with the Commissioner's conclusion that the appropriate legislation under which to consider the Request is EIR rather than FOIA. The Tribunal agrees with the Commissioner that the information requested falls within the definition of 'measures' set out in regulation 2(1)(c) which will, or will be likely to, affect the environment. 

 

 29.        Mr Shipp applied for planning permission to construct dwellings on Gidding Road, Sawtry. Planning permission was granted subject to Conditions including Condition 27.

 

 30.        The Tribunal finds that the Council as the Local Planning Authority was responsible for the implementation and discharge of Condition 27.

 

 31.        Condition 27 was a pre-commencement Condition in two parts. The first part was to agree the extent and detail of the road widening and footpath construction along Gidding Road and the second part to be agreed and approved was the programme for that work i.e. the implementation. Both parts of Condition 27 had to be approved prior to any commencement of work under the planning permission.

 

 32.        In the Outline Planning Permission  (Application Number 1401659OUT) dated 15 April 2016 Condition 27 states as follows:

 

"Notwithstanding the details hereby approved and prior to commencement details of road widening to include a footpath to and along Gidding Road shall be submitted to and approved in writing by the Local Planning Authority. The details as approved shall be implemented in accordance with a time to be agreed with the local planning authority.

 

 Reason: In the interests of highway and pedestrian safety. A pre-commencement Condition is necessary in order to ensure that the necessary infrastructure is agreed and in place before development reaches an advanced stage."

 

 33.        The Planning Consultation Response states:

"With regards to the discharge of Conditions 10, 11, 27 of OUT and 3 of REM all of these Conditions are covered by the section 38 and the 106 process and these are currently going through due process at the end of which the plans arrived at will satisfy the above Conditions."

 

 34.        The Tribunal finds that it is likely that the Council held information at the date of the Request relating to this 'due process.'

 

 35.        Mr Swaby, on behalf of the Council, stated in an email dated 9 August 2018 that "... a footway to serve your site should be available by the end of October." He stated, also, that following discussions with the County Highway Authority he could confirm that the new properties could now be occupied.

 

 36.        The Tribunal finds that the email of 9 August 2018 can only be read as confirmation that Condition 27 had been implemented and discharged. Mr Swaby must have gone through an established process and had information before him to reach this decision. The Tribunal finds it highly unlikely that Mr Swaby would confirm that the new properties could be occupied without the Council having gone through due process and consideration. It is highly unlikely that if due process was followed there would be no record of the progress and signing off of the process.

 

 37.        Mr Swaby states in his email that Linden homes had obtained the necessary legal agreement to carry out the works. The Tribunal finds that this is a reference to the implementation of Condition 27 and it is improbable that there would not be documents and information generated during the process of making this agreement.

 

 38.        The Tribunal finds it unlikely that that the information relating to implementation was on the planning portal because the portal refers only to: "Final Condition Discharge Letter viewable on Public Access." In its response to Mr Shipp the Council states that the planning portal holds the discharge of Condition 27. The Tribunal finds it unlikely that the Council holds no information leading up to the discharge decision.

 

 39.        The Council confirmed that Condition 27 was discharged on 9 February 2018. Condition 27 makes clear that discharge could only take place when the extent and  details of the road widening had been agreed and the programme/implementation had been agreed and approved.

 

 40.        The Tribunal finds it highly unlikely that these processes would not have been recorded and signed off by the Council and that information relating to this is held by the Council.

 

 41.        A road closure order was made for 12 weeks from 17 September 2018 as part of the implementation. It is not credible that there would be no correspondence, documents and information relating to this decision taking into account the process involved.

 

 42.        The Tribunal finds that work of this significance and importance would have required detailed consideration of extensive information and it is not credible to suggest that no information was held at the date of the Request.

 

 43.        The Tribunal finds that the Commissioner exercised his discretion inappropriately in accepting the Council's explanation without further probing the likely existence of information within the scope of the Request.

 

 44.        The Tribunal finds that the Commissioner made an error of law in finding, in the absence of adequate evidence, that on the balance of probabilities, the Council does not hold the information requested in the Request.

 

 

 

Signed: Judge J Findlay                                        Date: 15 March 2025