54 - Whitehaven Coal Mine: Disclosure of…

In blog post 25 we discussed the Planning Court’s decision in Friends of the Earth Limited v Secretary of State for Levelling up, Housing and Communities [2023] EWHC 3255 (KB) (the West Cumbria mining case) in which Ouseley J refused the Claimant’s application for specific disclosure of policy advice given to the Secretary of State in a Ministerial Submission.

Fast-forward 16 months to the FTT which has directed that the Submission (and the Minister’s response to the same) be disclosed (subject to the withholding/redaction of those parts which contain or refer to legal advice and personal data of junior civil servants/other relevant personal data), allowing an appeal against the ICO’s decision which held that the Department for Levelling Up, Housing and Communities was entitled to withhold it under reg 12(4)(e) of the EIR: Lucas Amin v Information Commissioner and Secretary of State for Levelling Up, Housing and Communities [2025] UKFTT 00221 (GRC).

There was no dispute, on the appeal, that the requested information constituted environmental information under reg 2(1) and that the exemption in reg 12(4)(e) (disclosure of internal communications) was engaged. The Appellant also accepted that any legal advice contained in the documents could be withheld under reg 12(5)(b) and that any personal data relating to junior civil servants could be withheld under reg 13.

The appeal turned on the public interest test. In substituting its decision for that of the ICO, the FTT considered that the ICO had erred “by attaching too little weight to the factors favouring disclosure and too much weight to the factors maintaining the exception”. It did not need to apply to presumption in favour of disclosure in reg 12(2) as it had concluded that “the interests in the Public Interest Test are not finely balanced”.

In particular:

Whilst the decision to grant planning permission was subject to legal challenge at the time the Department refused the EIR request, the decision to grant planning permission had been made and published several months previously. “Consequently, we find that there was little or no need for a safe space by the time of the Department’s refusal” (para 80);

Whilst it took into account the Department’s arguments that, should the planning inquiry be reopened (with the matter remitted back to the Planning Inspectorate) then the publication of the advice and response would risk interfering with that process, “it is difficult to see how such independent planning inspectors who have considerable professional expertise should have their views tainted in any material way simply by knowing what recommendations were made previously” (paras 85 and 86);

As to the Department’s submission that call-in decisions involved cases of more than local importance and had greater significance than most planning decisions “that ‘greater significance’ is actually a factor which adds weight to the arguments supporting disclosure, rather than maintaining the exception” (para 87);

It attached “little weight” to the fact the High Court had not ordered disclosure in the statutory review, which it considered was “not seminal for the purposes of this appeal, in that we needed to consider all of the evidence before us and make our own decision regarding the lawfulness of the Decision Notice pursuant to the EIRs” (paras 82 and 83);

On the facts of the case it “[did] not accept that there would be any material ‘chilling effect’ should the Withheld Information be disclosed. This is mainly because we consider that those involved in making ministerial submissions … should have an expectation that the submissions are at risk of disclosure in the public interest – and particularly so where the subject matter is controversial, as is the case in respect of the Planning Decision.” Accordingly, it afforded “little weight” to that factor in favour of maintaining the exception (para 89).

The FTT declined to make any findings on Ground 1 of the Appeal, which alleged ‘procedural unfairness of the ICO’s investigation (paras 49 – 53) stating, at para 51, that it was “outside our remit to make any finding in respect of the Commissioner’s conduct of his investigation”.

The documents are required to be disclosed within 35 days of the FTT’s decision, unless subject to appeal.

A copy of the FTT judgment can be found here.

This blog post was written by Jacqueline Lean.

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Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.