Dean v Information Commissioner [2024] UKFTT 330…

Introduction

In Dean v Information Commissioner, the First-tier Tribunal (General Regulatory Chamber) considered whether photographs belonging to the planning applicant, which allegedly showed planning notice being displayed, could be disclosed to the public. The judgment is notable, not least for its opening line from The Hitchhiker’s Guide to the Galaxy (more on this in the conclusion), but also for the tribunal’s consideration of the interaction between data protection legislation and the Aarhus Convention in respect of the right to public participation in the planning process. The decision also contains strong criticisms of the Council’s failure to implement planning law adequately. As the tribunal noted in the introduction,

Mr Dean's experience of the planning process of Shropshire County Council in 2022 suggests that 44 years of local government reform, and the adoption into UK law of major international and national measures to protect individual's rights with respect to the environment (Aarhus Convention), with respect to privacy (The General Data Protection Regulation [GDPR]) and long-standing arrangements to provide redress against maladministration (The Local Government Ombudsman) have done little to provide protection for Mr Dean (at [2]).

Facts

In 2022, Mr Dean awoke to works being carried out 15–20 metres from where he lived. No prior notice of the works was seen or received by either Mr Dean or his neighbours. Mr Dean, therefore, sought information about the planning process concerning the development, as he was particularly sensitive to its impacts. In his email to Shropshire County Council, he requested information about all emails, notes of telephone conversations and any other communications between the Council and the developer and/or any agents involved. The target disclosure date was 7 November, but having not received a response, he wrote again asking for prioritisation of his request.

In the meantime, Mr Dean also sought assistance from Ludlow Town Council, the area of whose he lived. The Town Council received an email from Shropshire County Council containing information as to the public consultation periods for the two planning applications relating to the works. One of the applications was a re-application for permission which had been previously granted but lapsed, the other for modification of existing structures.

On 23 November, as there was still no response from Shropshire, he sought the help of the Information Commissioner (‘IC’). As a result of the IC’s intervention, some information was released on 7 December. Mr Dean considered the released information to be inadequate, given that it contained excessive redactions, including a blacked-out photograph believed to be concerning a purported planning notice that was allegedly publicly displayed. On 11 January 2023, he wrote again to the IC seeking further disclosure and for the IC to adjudicate whether the Council’s decision to withhold photographic evidence was legitimate.

The IC defined the scope of its investigation and discussed the photographic evidence in its decision notice. The scope of the investigation into the withheld information comprised three photographs forwarded by the planning applicant showing the property in question. The IC’s decision was that the photographs constituted personal data of the planning applicant who would have a reasonable expectation that their personal data would not be disclosed to the public.

Mr Dean appealed the decision, arguing that the withheld photographs did not constitute personal data exempt from disclosure under Environmental Information Regulations and/or Freedom of Information Act (at [14]). He raised four points to support this argument:

First, Shropshire County Council stated that the photographs depicted the planning applicant’s application notice. Therefore, the photographs must be in public domain and obtainable by the public (at [14]).
Second, the photographs should be released in the public interest (at [14]).
Third, the IC’s failure to disclose the photographs prevented Mr Dean from complaining to the Local Government Ombudsman (LGO). Mr Dean relied on Milburn, R (on the Application of) v The Local Government and Social Care Ombudsman [2022] EWHC 1777 (Admin) where ‘the Ombudsman was found to have wrongly accepted assertions by a Local Authority that were unsupported by evidence’ (at [14]).
Fourth, it was in the public interest for the IC to release photographs which allegedly demonstrated that the planning applicant complied with the requirements for displaying planning notice to prevent the erosion of local democracy (at [14]).

The IC resisted the appeal on three grounds:

First, the photographs were personal data of the planning applicant which disclosed their identity and therefore had to be withheld. The tribunal was unconvinced – the personal data added nothing additional to the information that was already voluntarily placed by the applicant in the public domain as part of their application for planning permission (at [15]).
Second, Mr Dean’s legitimate interest in disclosure under Article 6(1)(f) GDPR was weakened by his ‘apparent shift from arguing for his personal interest to a more general public interest in democratic processes’ (at [16]). The tribunal found that, in so far as the photographs constituted personal data, the planning applicant was required to disclose that information as part of the planning process. The disclosure was in any event ‘necessary’ under the current circumstances to prove that the planning applicant had complied with requirements for display of planning notices (at [16]). The tribunal did not dwell on the IC’s further argument that Mr Dean’s interest could be met by ‘less intrusive means’ because the IC did not demonstrate how this could be achieved (at [16]).
Third, it was ‘unclear’ how the case identified by Mr Dean should be used as an authority for the proposition that his potential complaint to the LGO would be thwarted by the absence of the requested photograph, given that the Ombudsman has powers to request any relevant information (at [17]). The tribunal deemed it ‘clear’ that Mr Dean was citing the authority to support the contention that the LGO erred by wrongly accepting assertions made by the local authority unsupported by evidence. The tribunal noted that this was the same error that the IC fell into (at [17]).

It should be noted that the LGO refused to investigate Mr Dean’s complaint, which the tribunal noted ‘was a foreseeable outcome of a systemic failure by the council’ (at [17]).

The tribunal’s considerations are outlined below.

Consideration of the Tribunal

The tribunal framed its discussion by first outlining the failure of the Council’s approach to implement planning law consistently with local residents’ rights. It then considered the interaction between data protection legislation and the Aarhus Convention in respect of public participation in the planning process.

The failure of the Council to implement planning law

Article 6 of the Aarhus Convention guarantees the right to public participation in environmental matters. Specifically, it provides that ‘the public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure…’ (emphasis added) (at [20]). Domestic legislation, the Town and Country Planning (Development Management Procedure) (England) Order 2015 (‘DMPO’), provides for publicity of applications for planning permission (at [4]). It includes publicity by ‘site display’ – posting of the notice by firm fixture to some object, sited and displayed in such a way to be easily visible and legible by members of the public (at [4]).

In 2021, Shropshire replaced its previous arrangements for public engagement in the planning process by adopting a Statement of Community Involvement (at [5]). This included emphasis on electronic means of communication of planning issues and confirmation that site notices would be displayed (at [5]). The Council did not commit to individual notifications (at [5]).

The tribunal noted that if notices are displayed publicly for 21 days or individuals are notified, pursuant to the DMPO, the public have an opportunity to participate in the planning process (at [22]). However, Shropshire’s implementation of DPMO failed to accord local residents with their rights. This was because the Council ‘ceased’ to provide individual notices to local residents affected by a proposed development (at [23]). In addition, it ‘also abdicated responsibility for the display of site notices’ by making the developer responsible for their display (at [24]). The tribunal warned against this approach. It noted the ‘moral hazard’ of relying on individuals with strong pecuniary interest in minimising public involvement for the display of public notices, as well as the risk of inadequate compliance with requirements that could hinder public comments (at [24]). Therefore, Shropshire’s implementation of the DMPO failed to accord residents their rights to be informed either by public notice or individually.

The interaction between data protection legislation and the Aarhus Convention in relation to public participation

The IC’s decision concerning the withheld photographs requested by Mr Dean was that disclosure would ‘place new information into the public domain’, and ‘disclosure of such information would be unexpected and may cause the developer distress’ (at [26]). The tribunal held this to be ‘a pitiful failure to understand the scope and significance of material in the public domain and the role of data protection in protecting rights’ (at [27]).

The tribunal drew a parallel between the UN Implementation Guide to Aarhus, which recognises the Convention’s twin protections for environmental and human rights (at [21]), and the recognition of the complexity of interactions with other rights in Data Protection legislation (at [28]). The tribunal drew attention to Recital 4 of GDPR:

‘The processing of personal data should be designed to serve mankind. The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality. This Regulation respects all fundamental rights and observes the freedoms and principles recognised in the Charter as enshrined in the Treaties, in particular the respect for private and family life, home and communications, the protection of personal data, freedom of thought, conscience and religion, freedom of expression and information, freedom to conduct a business, the right to an effective remedy and to a fair trial, and cultural, religious and linguistic diversity’ (at [30]).

This is not the first time that the tribunal featured the Implementation Guide to Aarhus in the consideration of the legal framework. See, for example, this previous post where the tribunal noted that the Implementation Guide ‘should be taken into account in construing the Aarhus Convention’ (at [32]).

The tribunal then examined the IC’s comments about the two planning applications relating to the works – one which had previously been granted but lapsed and the other for modifications to existing structures. The Commissioner did ‘not consider that their approval required the level of deliberation that Mr Dean envisaged’ (at [31]). The tribunal criticised the ‘bankruptcy of the [IC’s] approach’, as it failed to recognise Mr Dean’s right to be informed and to be heard in the planning process (at [32]). The tribunal held that the disclosure of the photographs would not cause the developer ‘harm or distress’ because the information was required to be in the public domain and has remained in the publicly available planning records of the Council (at [32]).

The tribunal found Shropshire County Council, the IC and the LGO’s failure to protect Mr Dean’s rights ‘significant’ (at [33]). Shropshire misused GDPR by failing to release the photographs requested by Mr Dean which would have otherwise enhanced his rights to be informed and heard and have his views considered in the planning process (at [34]). The IC permitted this to happen by wrongly interpretating GDPR (at [34]).

Conclusion

Mr Dean’s experience of the planning process is remarkably similar to that of the protagonist of the Hitchhiker’s Guide to the Galaxy, Arthur Dent. In the book, Arthur has a conversation with the individual in charge of the demolition of his house which is replicated in the judgment (perhaps, life imitates satire):

“You were quite entitled to make any suggestions or protests at the appropriate time you know.”

“Appropriate time?” hooted Arthur. “Appropriate time? The first I knew about it was when the workmen arrived at my home yesterday. I asked him if he'd come to clean the windows and he said no he'd come to demolish the house. He didn't tell me straight away of course. Oh no. First he wiped a couple of windows and charged me a fiver. Then he told me.”

“But Mr Dent the plans have been available in the local planning office for the last nine months.”

“Oh yes well as soon as I heard I went straight round to see them, yesterday afternoon. You hadn't exactly gone out of your way to call attention to them had you? I mean like actually telling anybody or anything.”

“But the plans were on display...”

“On display I eventually had to go down to the cellar to find them.”

“That's the display department.”

“With a torch?”

“Ah, well the lights had probably gone.”

“So had the stairs.”

“But look you found the notice didn't you?”

“Yes," said Arthur, “yes I did. It was on display in the bottom of the locked filing cabinet stuck in a disused lavatory with a sign on the door saying Beware of the Leopard.” (at [1]).

This post was written by Mateusz Slowik. Mateusz is a bar course student. He previously worked as a Research Assistant at the Chinese University of Hong Kong on a monograph investigating environmental assessment as a tool for climate change mitigation.

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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.