Public Law

Hopefully you’ve all survived Christmas- and let me wish you (perhaps belatedly) a wonderful festive season on behalf of all of the Public Law bloggers. And by way of a present, here are some words on a recent English case which gives useful pointers to public authorities on procedural fairness (not as exciting as a woolly jumper or a Christmas selection box but better than nothing).

The case I am referring to is R (English) v East Staffordshire Borough Council & Another, which was a judicial review brought by an individual who had objected to an application for planning permission. The application was made by a subsidiary of the FA and supported by a financial report which was submitted on a highly confidential basis. The application was successful and the Council granted planning permission to build houses, to plug a funding gap in the construction of the National Football Centre.

As part of the planning process, an independent review of the financial report was commissioned by the Council. The Chief Planning Officer provided summaries of the report and review to members of the Planning Committee. Mr English argued that the reports themselves ought to have been provided to him and the Planning Committee.

The Court found in favour of the Council. It was acknowledged that, in granting planning permission, the Council was under a duty to act fairly in the circumstances of the case. However, this duty had to be balanced with the need for a planning authority to be able to examine matters confidentially. If not, there would be a negative impact on its ability to negotiate with developers on ‘publicly beneficial packages’ and this would harm the public interest. The Court also found that it was not ‘perverse’ (or unreasonable) for the Planning Committee to have made its decision without reviewing the confidential information itself.

This case is interesting for a number of reasons. Firstly, it provides a reminder that public authorities should bear the importance of disclosure of information in mind in a range of circumstances – and not just in response to an information request under freedom of information legislation or the Data Protection Act.

It also illustrates the delicate balancing acts which public authorities often have to carry out to meet their obligations to various stakeholders. In this case, the Council managed to protect the subsidiary’s commercial interests but also to ensure it acted fairly with Mr English in his capacity as an objector by disclosing the “gist” of the financial appraisals to him. This was enough to allow Mr English the opportunity to challenge the estimates included in these.

It is worth noting that there was a discrepancy between the estimates in the report submitted by the subsidiary and those in the independent review. One alternative for the Council may therefore have been to disclose both reports to the members of the Planning Committee and asked for any discussion on this to be held under exclusion of the press and public.

Mr English also took a case to the Information Commissioner, which was refused. This is under appeal and it will be interesting to see whether the final decision under freedom of information legislation leads to a different approach…something to look forward to in the New Year!