RS GIA 134 2014
| Jurisdiction | UK Non-devolved |
| Judge | Judge C. Turnbull |
| Judgment Date | 20 October 2015 |
| Neutral Citation | 2015 UKUT 568 AAC |
| Subject Matter | Information rights |
| Respondent | (1) The Information Commissioner, (2) North East Derbyshire District Council |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 134 2014 |
| Appellant | RS |
IN THE UPPER TRIBUNAL Case Nos. GIA/134,137,139 and 140/2014
ADMINISTRATIVE APPEALS CHAMBER
1. These are appeals by the information requester, Mr Stürmer, brought with my permission, against decisions of a First-tier Tribunal made on 11 October 2013. In my judgment, for the reasons set out below those decisions were wrong in law and I set them aside. In exercise of the power in s.12 of the Courts, Tribunals and Enforcement Act 2007 I re-make the First-tier Tribunal’s decisions as follows:
Mr Stürmer’s appeal is allowed to the extent only of declaring that the requests for information were not manifestly unreasonable (or vexatious) either at the times when they were made or at the times when they were initially responded to by the Council. However, having regard to events which have occurred since those dates the Council is not required to take any further steps to comply with the requests.
Introduction
2. In April 2006 the Second Respondent (the Council) contracted to sell land at sites in Bronte Street and Hawthorne Avenue, Mickley, Derbyshire to prospective developers for the sum of £80,000, subject to planning permission for residential development being obtained in accordance with a “development brief”. The purchasers, Wulf Investments Ltd (“Wulf”), also agreed to construct a shop on the land, which they would be entitled to let. The Council insisted on that provision as there had been substantial local concern that without it there would be no shop in the village, the previous shop having been demolished.
3. Planning permission was obtained for construction of a total of 23 houses on the land, and in around October 2007 Wulf, having constructed the shop, re-sold the two parcels of land, otherwise undeveloped, for a total of £655,000.
4. The difference between the price obtained by the Council and the price obtained on a resale of the land some 18 months later caused substantial local concern, and Mr Sturmer has been assiduous, the Council would say obsessive, in trying to discover what went wrong, and in particular whether there was either fraud or negligence on the part of Council officers and employees. He has made numerous requests for information under the Freedom of Information Act 2000, both before and after the 4 requests which were the subject of the FTT’s decisions in the appeal before me.
5. Those 4 requests were made in October 2011 and January 2012, and the Council’s response was to refuse to answer them on the ground (contained in s.14 of FOIA) that they were “vexatious”, alternatively (if the Environmental Information Regulations 2004 (EIR) applied), that they were “manifestly unreasonable” within reg. 12(4)(b). The Council have, I think, taken the same view in relation to subsequent FOIA requests by Mr S relating to the Mickley land sale.
6. In March 2013 the Information Commissioner (IC) dismissed Mr Sturmer’s complaint in relation to the refusals of those four particular requests, and by the decisions under appeal to me the FTT dismissed Mr Sturmer’s appeals against the IC’s decisions.
7. For the reasons explained below, the FTT’s decision that the requests were manifestly unreasonable/vexatious was in my judgment wrong in law and must be set aside. For reasons also explained below I have concluded that it is appropriate for me to re-make the FTT’s decision, rather than remitting the matter for redetermination by a fresh FTT.
8. There have since the dates (now between 3 and 4 years ago) when the Council asserted that it was entitled to refuse to respond to the requests been substantial developments, as regards the information released by the Council, and investigations undertaken by it. The position is now in my view significantly different. I will need to consider to what extent, in re-making the FTT’s decision, I can take into account those subsequent events.
9. It is therefore convenient to structure this decision by beginning with a recital of the primary facts, so far as directly material to this decision, in chronological order. For the most part there is no dispute as to those facts. Where there is or may be dispute is as to whether those facts evidence or indicate improper conduct on the part of Council officers or employees in relation to the sale. It is of course no part of my function to determine whether there was any such impropriety, but in determining whether Mr Sturmer’s requests were vexatious, and in particular whether the requests had a serious purpose, it is material to look at the concerns which Mr Sturmer and others were putting forward, and how they were answered.
10. The IC dealt with the matter on the basis that on a correct analysis the requests were for information on a ‘measure’ (i.e. a land sale) likely to affect the elements of the environment such as the land purpose and landscape, and therefore were requests for “environmental information”, as defined in the EIR (see the IC’s letter to the Council dated 14 May 2012). The Council’s submission to the FTT was on that basis. I have doubts about that analysis. In view of the fact that the test under s.14 of FOIA is substantially the same as that under reg. 12(4)(b) of the EIR, I propose to simplify this decision by referring for the most part only to the test in s.14, namely whether the requests were “vexatious”. My decision would be the same if reg. 12(4)(b) is the applicable provision.
The history
11. In July 2004 there was an expression of interest by Wulf in purchasing the Mickley sites for £80,000. On 14 July 2004 the Council’s Executive Committee resolved to place the sites on the open market, for sale by informal tender, with the benefit of a ‘development brief’, which included the requirement to construct a retail shop. That was a potential burden on the purchaser in that it was considered that construction of a shop would not be a commercial proposition for a developer (because, as I understand it, the rent which could realistically be obtained from letting such a shop would not give a commercial return on the costs of constructing it). The proposal was that a 125 year lease of the shop site at a ground rent would be transferred to the developer, which would enable the Council as ground landlord to ensure that the shop remained used as such.
12. The sites were advertised by way of a ‘For sale’ sign on the land, advertisements in the local press, and by direct mailing to local estate agents. The result of the advertising campaign was that 24 sets of tender documents were sent out, but only 1 bid was received, which was from Wulf in the sum of £80,000.
13. The sale of the land was considered by the Council’s Executive Committee at a meeting on 6 April 2005. A report by Councillor G. Pass, who had ‘Portfolio Responsibility for Asset Management’, was considered at that meeting. According to the Council’s submission in this appeal that report included an in-house valuer’s professional opinion on value as follows:
“With regard to value the bid submitted is a similar figure to that put forward as an estimate of receipt within the previous report to Executive. If costs of providing the shop are added to the bid then the final figure equates to around £170,000 per acre for the combined development sites. This is significantly lower than the levels of values achieved for the larger housing sites at Clay Cross recently sold which have shown nearer £400,000 per acre but it reflects the bidder’s view of the poorer general location in the midst of the housing estate, probability of a requirement to divert a sewer, other service constraints and the fact that there is a split development of the site.
Taking account of the above matters from an Estate Management viewpoint the offer could be recommended for acceptance subject to more detailed discussion on the design of the scheme in accordance with planning guidance which will in any event be subject to planning permission and clarification of the future management arrangements for this shop.”
14. The Minute of that meeting on 6 April 2005 records that it was resolved as follows:
“That the offer for the sites at Mickley as detailed within the report be accepted, subject to contract and detailed planning permission with the final sum and terms to be agreed by the Director of Development and Leisure in consultation with the Executive Member with Portfolio Responsibility together with the future management arrangements for the shop and design of the development at the Bronte Street site taking into account the planning development guidance.”
15. As a result of that meeting Wulf’s offer was accepted by the Council, subject to contract and planning permission.
16. The sequence of events, as regards exchange of contracts, grant of planning permission, any further negotiations between the Council and Wulf, and completion, is then not wholly clear from the papers.
17. According to the Council’s long letter of 18 December 2013 to certain Councillors (see para. 72 below) contracts were exchanged on 6 April 2006. (I am not sure, however, whether that was the date when contracts were exchanged, or the date when a contract previously exchanged became...
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