Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  GIA/4279/2012

ADMINISTRATIVE APPEALS CHAMBER

 

1. This is an appeal by the information requester (Mr W), brought with my permission, against a decision of a First-tier Tribunal made on 24 October 2012. For the reasons set out below that decision was in my judgment wrong in law and I set it aside. In exercise of the power in s.12 of the Tribunals, Courts and Enforcement Act 2007 I make the findings of fact set out below and re-make the First-tier Tribunal’s decision as follows:

 

The Information Commissioner’s Decision Notice dated 20 March 2012  is replaced with a decision that, for the reasons set out below, the requested information is subject to the exceptions provided by regulations 12(5)(b)(course of justice) and 12(5)(d)(confidentiality of proceedings) of the Environmental Information Regulations 2004. The Local Government Ombudsman is therefore not required to take any steps as a result of this decision.

 

Introduction: the facts in outline

2. Mr W lives in what is designated under the Clean Air Act 1993 (“the CAA”) as a “smoke control area”. He objected to what was being emitted from the chimneys of two of his neighbours who were using a make of wood-burning stove and a specification of fuel which were both approved under that Act. He sought to persuade the Third Respondent (“the Council”) to use statutory nuisance powers under the Environmental Protection Act 1990 (“the EPA”) to prevent or control those emissions.

 

3. The Council obtained written advice from counsel dated 17 April 2011 (“the Advice”) as to the ambit of its statutory powers, in the particular circumstances. The Council informed Mr W that the Advice was to the effect it could not proceed under powers in the EPA, and that its only relevant powers were those in the CAA.

 

4. In June 2011 Mr W made a complaint to the Second Respondent (“the LGO”) that the Council had failed to control the smell and smoke nuisance from the wood-burning stoves. The LGO sought information from the Council, which provided the LGO with a copy of the Advice, but expressly on the basis that its contents should be kept confidential.

 

5. On 7 September 2011 the LGO produced a “provisional decision” that he did not intend to investigate the complaint further. So far as material for present purposes the LGO’s reason was that the Council “has now taken legal advice and that very clearly states that the Council should consider whether there are offences under the [CAA] rather than under the [EPA].”

 

6. On 12 September 2011 Mr W requested the LGO to provide a copy of the Advice. On 30 September 2011 the LGO refused that request. As regards a possible obligation to disclose under the Freedom of Information Act 2000 (FOIA), the LGO relied on the exemption in s.42 of that Act in respect of documents covered by legal professional privilege (LPP). As regards a possible obligation to disclose under the Environmental Information Regulations 2004 (EIR), the LGO relied on the exception in Regulation 12(5)(d) relating to information whose disclosure would adversely affect the confidentiality of the proceedings of a public authority.

 

7. By a review decision made on 3 November 2011 the LGO affirmed its refusal to disclose the Advice. On 7 December 2011 Mr W complained to the First Respondent (“the IC”).

 

8. On 20 December 2011 the LGO produced its final decision on Mr W’s complaint, which was to the same effect as its provisional decision.

 

9. The IC issued his decision notice on 20 March 2012. In summary, he concluded that:

 

(1) the applicable access regime in respect of the Advice was the EIR, not FOIA; (It was common ground before the FTT and before me that that conclusion was correct).

 

(2) the LGO could not rely on the exception in reg. 12(5)(d) of the EIR because that provision was excluded by reg. 12(9);

 

(3) however, the exception in reg. 12(5)(b) applied because disclosure of the Advice would adversely affect the course of justice.

 

(4) the balance of public interest was in favour of maintaining the exception in reg. 12(5)(b) and therefore the Advice need not be disclosed.

 

10. By the decision which is now under appeal to me the FTT on 24 October 2012, after considering the matter on the papers without an oral hearing, dismissed Mr W’s appeal against the IC’s decision. Its reasons were in summary as follows:

 

(1) Regulation 12(5)(b) was engaged in respect of the Advice, which was subject to LPP;

 

(2) There had been no waiver of LPP;

 

(3) On an application of the public interest test, the public interest balance weighed in favour of maintaining the exception in reg. 12(5)(b), and the Advice therefore need not be disclosed.

 

(4) Mr W’s central point in relation to the public interest balance was that the content of the Advice had been misrepresented by the Council and/or the LGO. In support of this case, Mr W had relied primarily on various items of correspondence sent by the LGO and the Council. However, the FTT decided that this central point could not be maintained for two reasons. First, the correspondence relied upon by Mr W postdated the period when the LGO had been dealing with his information request (and the statutory time for compliance with the request) and therefore could not be taken into account. Second, Mr W had in any event misconstrued the relevant correspondence; it did not contain any misrepresentation. The FTT also rejected a contention by Mr W that the Council had ignored the Advice.

 

11. Mr W now appeals to the Upper Tribunal, with my permission. I held an oral hearing of the appeal on 22 January 2014. Mr W had indicated in a letter to the Upper Tribunal dated 2 September 2013 that, for health reasons, he did not propose to appear at the hearing. He has made lengthy submissions in writing. At the hearing the IC was represented by Mr Edward Capewell of counsel, the LGO by Miss Anya Proops of counsel, and the Council by Mr Paul Nicholls QC. The hearing was conducted for the most part on an “open” basis, but a short “closed” session was held at the end, involving submissions which could not sensibly be made without referring to the contents of the Advice (which I and counsel for each of the Respondents have seen, as had the First-tier Tribunal).

 

Overview of my approach to this appeal

12. For the reasons set out below the First-tier Tribunal’s decision was in my judgment wrong in law and must be set aside. It was submitted by all three counsel that in those circumstances I should remit the matter to be redetermined by a fresh FTT, albeit with directions on any issues of law which will or might arise before the fresh FTT (such as the reg. 12(9) issue). I accept that that would normally be the appropriate course. The making of findings of fact, and in particular the weighing of competing public interests, in an information rights case is an exercise to which the composition of an FTT, with its lay members with particular experience of such issues, is particularly suited. The appeal structure contemplates that the fact finding will normally be done by the FTT, with the Upper Tribunal deciding only points of law. However, I have concluded that in the present case I should redetermine all issues myself, for the following reasons.

 

13. First, the context in which the factual issues arise, namely the significance of LPP and confidentiality in relation to legal advice is one which is particularly appropriate for the fact finding and (if necessary) public interest balancing exercises to be undertaken by someone with legal qualifications and experience

 

14. Secondly, as I understood it both Mr Nicholls and Miss Proops submitted that even if I were to find that the FTT went wrong in law (in relation to reg. 12(5)(b)) in attaching the weight which it did to the general weakening of the sanctity of LPP which compulsory disclosure would involve, there was nevertheless clearly some weight to be attached to that factor, and nothing to put on the other side of the public interest scales, so that I should nevertheless uphold the FTT’s decision on that basis. In addition, there has been very extensive argument directed to the question whether the First-tier Tribunal went wrong in law in finding that the Council had not misrepresented the Advice, and that argument involved looking in detail at the documentary evidence before the FTT. Indeed, as appears below, I was invited by Mr Nicholls to take into account correspondence which postdated the LGO’s review decision on 3 November 2011, correspondence which the FTT did not consider because it held that it could not be taken into account. My decision of this appeal has therefore in any event involved my going into the facts of the case in considerable detail, an exercise which would have to be repeated by three fresh minds if the matter were to be remitted.

 

15. Thirdly, it has not been suggested to me that any of the parties would wish to adduce any oral or additional documentary evidence, were the matter to be remitted. I also note here that in a Direction which I made on 10 July 2013, giving an indication of my provisional views as to the issues which would arise in the appeal, I said that I would be minded to re-make the FTT’s decision.

 

16. Fourthly, this case has already involved the expenditure of what must be substantial costs by three public bodies. I consider that I should do what I properly can to reduce the risk of further expenditure. If I remit, there will inevitably be further legal costs in relation to the fresh FTT proceedings, and then the possibility of a further appeal to the Upper Tribunal.  

 

17. I therefore find it convenient to structure this decision by proceeding straight to a consideration of the issues which need to be decided in re-making the FTT’s decision, and in the course of doing that to explain why the FTT’s decision was in my judgment wrong in law and must be set aside. The issues which arise in re-making the FTT’s decision are very broadly as follows:

 

(1) Is the exception in reg. 12(5)(b) engaged?

 

(2)(a) Is the exception in reg. 12(5)(d) excluded by reg. 12(9)?

(b) If not, is reg. 12(5)(d) engaged?

 

(3) If either or both of those exceptions are engaged, what is the outcome of the required public interest balancing exercise?

 

The Environmental Information Regulations 2004

18. The EIR provide, so far as material, as follows:

 

“2(1) In these Regulations ……..

“environmental information” has the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on –

 

(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

 

(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

 

(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;

 

(d) ………………………..

  (e) ………………………..

(f) ……………………….

 

5(1) ……….. a public authority that holds environmental information shall make it available on request.

 

12(1) Subject to paragraphs (2), (3) and (9) a public authority may refuse to disclose environmental information requested if –

(a) an exception to disclosure applies under paragraphs (4) or (5); and

(b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.

 

(2) A public authority shall apply a presumption in favour of disclosure.

(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect –

 

(b) the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature;

(d) the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law;

(f) the interests of the person who provided the information where that person –

(i) was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority;

(ii) did not supply it in circumstances such that that or any other public authority is entitled apart from these Regulations to disclose it; and

(iii) has not consented to its disclosure.

 

(9) To the extent that the environmental information to be disclosed relates to information on emissions, a public authority shall not be entitled to refuse to disclose that information under an exception referred to in paragraphs 5(d) to (g).

 

(11) Nothing in these Regulations shall authorise a refusal to make available any environmental information contained in or otherwise held with other information which is withheld by virtue of these Regulations unless it is not reasonably capable of being separated from the other information for the purposes of making available that information.”

19. The EIR were enacted in compliance with the UK’s obligations under Directive 2003/4/EC on access to environmental information. The recitals to the Directive include the following:

 

(1) Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment.

 

(16) The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases. Grounds for refusal should be interpreted in a restrictive way, whereby the public interest served by disclosure should be weighed against the interest served by the refusal. …..

 

20. Article 4.2 of the Directive provides that Member States may provide for a request for information to be refused “if disclosure of the information would adversely affect …..” and the situations then specified are the same as those specified in reg. 12(5) of the EIR. At the end of Article 4 is a provision as follows:

 

“The grounds for refusal mentioned in paragraphs 1 and 2 shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure. In every particular case, the public interest served by disclosure shall be weighed against the interest served by the refusal.”

 

The adjudication and appeal framework

21. Regulation 18 of the EIR provides that the enforcement and appeal provisions of FOIA apply for the purposes of the EIR. By section 50 of FOIA any person may apply to the IC for a decision whether, in any specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance with the EIR. Under s.57 FOIA either the requestor or the public authority can appeal to the FTT against a decision notice of the IC. By s.58:

 

“If on an appeal under section 57 the Tribunal considers –

(a) that the notice against which the appeal is brought is not in accordance with the law, or

(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently ,

the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.”

 

22. Section 11 of the Tribunals, Courts and Enforcement Act 2007 gives a right of appeal on a point of law, with permission, to the Upper Tribunal from a decision of the FTT. By s.12 of the 2007 Act, if the Upper Tribunal sets aside the FTT’s decision as wrong in law, it must either remit the case to the FTT with directions for its reconsideration, or re-make the decision. In re-making the decision the Upper Tribunal may make such findings of fact as it considers appropriate.

 

The Local Government Ombudsman

23. The LGO is a statutory regulator with responsibility for investigating complaints made by members of the public about the conduct of local authorities. (More accurately, “the Local Government Ombudsman” is the name colloquially given to Local Commissioners for Administration to discharge functions under Part III of the Local Government Act 1974 (“ the LGA 1974”)).

 

24. The LGO has wide-ranging powers under s.29 of the LGA 1974 to obtain information and documents for the purpose of an investigation. However, by section 29(7) “no person shall be compelled for the purposes of an investigation …….to give any evidence or produce any document which he could not be compelled to give or produce in civil proceedings before the High Court.” Section 29(7) clearly permits a local authority to refuse to produce any information which is protected by LPP.

 

25. By section 28(2) of the 1974 Act “every investigation under this Part of this Act shall be conducted in private, but except as aforesaid the procedure for conducting an investigation shall be such as the Local Commissioner considers appropriate in the circumstances of the case ……”

 

26. By section 32(2) of the 1974 Act:

 

“Information obtained by a Local Commissioner ………., in the course of or for the purposes of an investigation under this Part of this Act shall not be disclosed except –

 

(a) for the purposes of the investigation and of any report, statement or summary under section 30, 31 or 31B above;

 

………………………………………………”

 

Statutory nuisances and clean air

The Environmental Protection Act 1990

27. Part III of the EPA is headed “Statutory nuisances and clean air”. Relevant provisions of Part III are the following:

 

“79(1) Subject to subsections (1A) to (6A) below, the following matters constitute “statutory nuisances” for the purposes of this Part, that is to say –

 

(a) any premises in such a state as to be prejudicial to health or a nuisance;

(b) smoke emitted from premises so as to be prejudicial to health or a nuisance;

(c) fumes or gases emitted from premises so as to be prejudicial to health or a nuisance;

………………………………………………..

 

(h) any other matter declared by enactment to be a statutory nuisance;

 

And it shall be the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with under section 80 below or sections 80 and 80A below and, where a complaint of a statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint.

 

(3)  Subsection (1)(b) above does not apply to –

(i) smoke emitted from a chimney of a private dwelling within a smoke control area;

 

(7)  In this Part –

“dust” does not include dust emitted from a chimney as an ingredient of smoke;

“fumes” means any airborne solid matter smaller than dust;

“gas” includes vapour and moisture precipitated from vapour;

“smoke” includes soot, ash, grit and gritty particles emitted in smoke.”

 

The Clean Air Act 1993 and legislation made thereunder

28. Section 20(1) of the CAA provides that “if, on any day, smoke is emitted from a chimney of any building within a smoke control area, the occupier of the building shall be guilty of an offence.” By section 64 of the CAA “smoke” has the same definition as in the EPA.

 

29. By section 20(3) subsection 20(1) has effect subject to any exemptions for the time being in force under section 18, 21 or 22.  

 

30. Section 20(4) provides that in proceedings for an offence under that section it shall be a defence to prove that the alleged emission was not caused by the use of any fuel other than an authorised fuel.

 

31. By section 21 the Secretary of State may by order exempt any class of fireplace, upon such conditions as may be specified in the order, from the provisions of section 20, if he is satisfied that such fireplaces can be used for burning fuel other than authorised fuels without producing any smoke or a substantial quantity of smoke.

 

32. The Smoke Control Areas (Exempted Fireplaces)(England) Order 2010 recites that “the Secretary of State is satisfied that the fireplaces exempted by this Order can be used for burning fuel other than authorised fuels without producing any smoke or a substantial quantity of smoke.” The Schedule to that Order specifies, among the exempted fireplaces, the Carron Stove, subject to conditions including a condition that the permitted fuels (other than authorised fuels) for use with the fireplace are dry and split wood logs of a maximum length of 23 cm (which must not contain halogenated organic compounds or heavy metals as a result of treatment with wood preservatives or coatings).

 

33. It is plain, therefore, that in so far as the emissions from the chimneys of Mr W’s neighbours were “smoke”, within the EPA definition, the Council could not seek to control them under the DPA, but only under the CPA: section 79(3) of the EPA. Further, on the footing that the neighbours were using a Carron Stove to burn the fuel permitted in the 2010 Order, it is plain that no action could be taken under the CAA either.

 

34. Mr W’s contention has been, however, that what was being emitted produced an unpleasant smell and included “fumes” and “gases” within the EPA definitions, and that the Council was therefore required to control them under s.79(1)(c) of the EPA. If correct, that would involve the highly unsatisfactory position, from the neighbours’ point of view, that even though the make of fireplace and the specification of the fuel were approved under the CAA, they could nevertheless be prosecuted under the EPA in respect of emissions. It would, as a matter of impression, be surprising if that were the law. One possible answer to that contention would appear to be that the structure of the legislation requires a construction that if what is being emitted from a domestic chimney in a smoke control area is or includes smoke, it is not permissible to sub-divide the emissions into their constituent parts and to proceed under the EPA on the footing that they include “fumes” and “gases”.

 

Was regulation 12(5)(b) engaged: would disclosure of the Advice “adversely affect the course of justice”?

(i) The effect on the course of justice by reason of a weakening of LPP generally

 

35. The FTT concluded in paras. 23 and 24 of its decision that disclosure of the Advice would “adversely affect … the course of justice.” Para. 24 is as follows:

 

“We do not need to review the authorities, starting with the line of cases beginning with Bellamy (EA/2005/0023), on this well documented issue. We agree with the [IC] that disclosure of information that is subject to [LPP] would have an adverse effect on the course of justice simply through the weakening of this important doctrine. This would, in turn, undermine a legal adviser’s capacity to give full and frank advice and discourage the seeking of legal advice. Disclosure would inhibit the ability of the Council to make its own decision and consider its own position with the benefit of legal advice. We therefore conclude that [the IC] was entitled to find that the legal advice is covered by [LPP], that disclosure of the legal advice would adversely affect the course of justice and that therefore the exception in regulation 12(5)(b) is engaged.”

 

36. In my judgment that reasoning was wrong in law, on the facts of the present case.

 

37. The request for the Advice was of course made to the LGO, not to the Council. I accept, however, that the Council continued to be entitled to claim that the Advice was subject to LPP in the LGO’s hands, the Advice having been provided to the LGO expressly on terms that it should remain confidential: see, for example, Gotha City v Sotheby’s [1998] 1 WLR 114.

 

38. It is clearly established that the words “would adversely affect the course of justice” include the effects on the administration of justice generally (i.e. in relation to future cases) by reason of a weakening of the confidence in the efficacy of LPP which a direction for disclosure in the instant case would involve. That had been confirmed, prior to the FTT’s decision in this case, by the decision of a 3 Judge Panel of the Upper Tribunal (Lord Justice Carnwath presiding) in DCLG v IC and Robinson [2012] UKUT 103 (AAC); [2012] 2 Info LR 43, at [51].

 

39. As noted in [37] of the DCLG case, the development of the doctrine of legal advice privilege, and of the rationale for it, is traced in detail in the speech Lord Taylor of Gosforth CJ in Reg v Derby Magistrates Court, Ex p. B, [1996] AC 487, and then summarised by him as follows at p.507D:

 

“The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.”

 

40. Lord Taylor went on (at p.508C) to reject a submission that, by analogy with the doctrine of public interest immunity, there might be occasions, if only by way of rare exception, in which LPP should yield to some other consideration of even greater importance:

 

“But the drawback to that approach is that once any exception to the general rule is allowed, the client’s confidence is necessarily lost. The solicitor, instead of being able to tell his client that anything which the client might say would never in any circumstances be revealed without his consent, would have to qualify his assurance. He would have to tell the client that his confidence might be broken if in some future case the court were to hold that he no longer had “any recognisable interest” in asserting his privilege. One can see at once that the purpose of the privilege would thereby be undermined.”

 

41. I was referred by counsel to a number of other recent statements of high authority emphasising the virtually absolute nature of LPP, and in particular to the judgment of Lord Sumption (which, although a dissenting judgment, was approved by the other Supreme Court Justices on this point) in R (Prudential) v Special Commr of Income Tax [2013] 2 AC 185, particularly at [116] to [118].

 

42. What particularly matters for present purposes is in my judgment that the rationale for the doctrine and its absolute nature is established as being the need for the client to be able to obtain legal advice on a full and frank basis.

 

43. In para. [53] of the DCLG case the Upper Tribunal considered whether, in the case where the disputed information is protected by LPP, reg. 12(5)(b) is necessarily engaged, because a direction for disclosure would necessarily weaken public confidence in LPP to some extent. The Upper Tribunal noted, but did not find it necessary on the facts of that case finally to decide the correctness of, counsel for DCLG’s acceptance that “it would be possible to conclude that the course of justice would not be adversely affected if disclosure were to be directed only by reason of particular circumstances, (e.g. that the legal advice is very stale), such that there would be no undermining of public confidence in the efficacy of LPP generally.” The exception in reg. 12(5)(b) permits a public authority to refuse to disclose information “to the extent that its disclosure would adversely affect ……the course of justice ….” In my judgment that requires attention to be focused on all the circumstances of the particular case, and there is no room for an absolute rule that disclosure of legally privileged information will necessarily adversely affect the course of justice.

 

44. In my judgment it was not possible to conclude, in the present case, that if the Advice were directed to be disclosed by the LGO, there would be any weakening in the confidence of local authorities generally in their ability to obtain legal advice on a full and frank basis without the risk of that advice getting into the hands of third parties without their consent. Section 29(7) of the LGA 1974 expressly provides that the LGO cannot compel a local authority to produce information which is protected by LPP. Local authorities could and in my judgment plainly would continue to seek legal advice in the same way uninhibited way as they do at present, without fear of it becoming disclosed without their consent. They would know that, if there were to be a complaint to the LGO to which the advice was potentially relevant, they could decide at that stage whether to provide it to the LGO, with the possible risk of the complainant requesting it from the LGO under the EIR.

 

45. It was submitted to me by all the Respondents that, even if the FTT was wrong to attach the weight which it did to the weakening of the doctrine of LPP generally which disclosure in this case would involve, there would nevertheless some weakening of the doctrine. I accept that there would be weakening in the sense that local authorities would know that, if they voluntarily disclosed the advice to the LGO, it might be obtained from the LGO under the EIR. But I do not accept that there would thereby be any adverse effect on the administration or course of justice. As I have said, any potential weakening of LPP is considered to adversely affect the administration of justice because, and in my judgment only because, it would damage the ability of clients to obtain legal advice on a full and frank basis. It is on that ability that the administration of justice is considered to depend. It is in my view wholly unrealistic to think that there would be any effect on the way in which local authorities seek advice, or on the manner in which it is given, if disclosure were ordered in the present case.  

 

46. If in a future case a local authority were to decide not to disclose legal advice to the LGO, because of the risk of compulsory disclosure under the EIR, what might be damaged would be not the course of justice but the ability of the LGO to conduct future investigations on a fully informed basis. None of the Respondents has contended that that consequence amounts to an adverse effect on “the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature”, within the subsequent words of reg. 12(5)(b). It seems to me clear that an investigation by the LGO cannot be described as an inquiry of a disciplinary nature.

 

47. Mr Nicholls contends that it would be unfortunate if compulsory disclosure of the Advice “could lead to adverse consequences for local authorities or complainants if local authorities felt compelled to withhold privileged documents for fear that by disclosing them, on a confidential basis, to the LGO, the authority would lose the right to assert against third parties the LPP which undoubtedly continues to exist ….” I accept that it would be unfortunate if local authorities could not provide copies of legal advice to the LGO without risk of it becoming disclosable under the EIR. Such a result might hamper their ability to give a full explanation to the LGO of why they acted as they did. But the question for me here is not whether disclosure would lead to that result, but whether it would adversely affect the course of justice. (I also observe, although it is not a complete answer to this point, that save in relation to information which relates to information on emissions the LGO would be entitled, as I hold below she is entitled to do in this case, to invoke the exception in reg. 12(5)(d)).

 

48. In my judgment the conclusion that a direction for disclosure in this case would not adversely affect the course of justice by reason of a weakening of the doctrine of LPP cannot be affected by the fact that, if the request for the Advice had been made to the Council, the Council would have been able to rely on the potential weakening of the confidence in the sanctity of LPP in subsequent cases which a compulsory disclosure of the Advice would have involved. Miss Proops submits that, if the LGO can be obliged to disclose the advice, then it necessarily follows that the Council would equally have been obliged to disclose it, had the request been made to it. That does not in my judgment follow.

 

49. Although the conclusion that the fact that the request was made to the LGO makes a difference may seem counter-intuitive, given that the Advice remained privileged in the LGO’s hands, that conclusion does in my judgment follow. The exception relates to adverse effect on the course of justice. It is not an exception in respect of LPP as such. I would add that, even if I am wrong in finding that there would be no adverse effect on the course of justice by reason of a weakening of the doctrine of LPP, it is in my judgment clear that the FTT nevertheless went wrong in law, in paragraphs 23-4 and 43-9 of its decision, in attributing the same significance and weight to the weakening of LPP in subsequent cases which a direction for disclosure by the LGO in this case would involve, as would have been appropriate if the request had been made to the Council and disclosure by the Council were to be directed. It is in my judgment clear that any such weakening, and therefore adverse effect on the course of justice, would be substantially less than if disclosure by the Council were to be directed.  

 

50. For completeness, I should say that this point did not form part of Mr W’s grounds of appeal to the Upper Tribunal, but when giving permission to appeal I raised it. It was submitted by both Mr Nicholls and Miss Proops that I have no jurisdiction to allow the appeal on this basis, it not having been expressly adopted by Mr W in his written submissions or skeleton argument. The question for the Upper Tribunal on an appeal is whether the First-tier Tribunal’s decision was wrong in law. The Upper Tribunal is entitled, subject to questions of natural justice and the like, to decide that a FTT’s decision is wrong in law in a particular respect, whether or not it has been raised by the appellant. As I stated at the hearing, that is a regular occurrence in this Chamber, where a substantial proportion of appellants are unrepresented and cannot be expected to take all the points which may be available. There is therefore no doubt that I have jurisdiction to set aside the FTT’s decision on this basis, as I think both Mr Nicholls and Miss Proops were disposed to recognise in their oral submissions. I would also mention that in a letter dated 13 January 2014 to the Upper Tribunal, copied to the Respondents, Mr W stated, in response to the skeleton arguments on behalf of the Council and the LGO, that he did wish to rely on the point.

 

(ii) The effect on the Council in the present case

51. It was noted in the DCLG case at [54] that the factors which can be taken into account in determining whether the course of justice would be adversely affected by disclosure include adverse effects on the course of justice in the particular case, such as that it would be unfair to give the requester access to the public authority’s legal advice, without the public authority having the corresponding benefit. However, the Upper Tribunal noted that:

 

“it would of course have to be borne in mind, when considering the significance of an adverse effect on the course of justice in the particular case, that the exception is only engaged if the course of justice would be adversely affected. We agree with the decision in Maiden EA/2008/013 that this means that, at the material time, the adverse effect must be more probable than not.”

 

52. I do not accept the submissions by the Council and the LGO that the mere fact that disclosure under the EIR would involve the Council’s LPP in the Advice being overridden means that disclosure would adversely affect the course of justice. I note again that this is not an exception in respect of information covered by LPP, but an exception where the course of justice would be adversely affected. Whether the course of justice would be adversely affected must be decided by looking at all the relevant effects of disclosure in the circumstances of the particular case. It may often be unfair on a public authority to have to disclose legal advice which it has received, without having the corresponding benefit, but it will not necessarily be so.

 

53. It is in my judgment for the public authority to identify and establish any adverse effect on the course of justice on which it relies.  It is submitted by Miss Proops, in her Skeleton Argument, that “what would adversely affect the course of justice is the unilateral disclosure to the world at large of confidential legal advice which may be exploited in future legal disputes so as to disadvantage the Council.” In oral argument she submitted that if the Council were to obtain other advice (e.g. from leading counsel), Mr W or others might be able to use the Advice to undermine the QC’s advice. I regard that sort of possibility as remote. It certainly cannot be regarded as probable.  She further submits in her skeleton that disclosure would “serve[s] to create an asymmetry in any potential litigation environment which is itself unjust”. Mr Nicholls made oral submissions to the same effect.

 

54. I have come to the conclusion that there would be potential unfairness to the Council in having to disclose the precise terms of the Advice. This is obviously not a case where the issues covered by the Advice have become stale. It is likely that Mr W or others would carefully scrutinise the Advice to see whether there is anything in it which helps them. The Advice considers the issues in a balanced way. In my judgment, in the light of the virtually absolute nature of LPP in English law, Mr Nicholls and Miss Proops are right in submitting that that element of unfairness means that the course of justice would be adversely affected by disclosure.

 

55. However, in my judgment this adverse effect on the course of justice should not be given great weight in the public interest balancing exercise. Mr Nicholls has not drawn my attention to any particular part or feature of the Advice which the Council would be unhappy about disclosing, or pointed to any specific concern which it has about Mr W or the public in general seeing it. Nor has it been suggested, for example, that the Advice needs to be qualified because of some inaccuracy or incompleteness in the instructions to counsel. The weight to be accorded to the adverse effect on the course of justice in this case is in my judgment very substantially less than it would have been if the LGO had been able to rely on the weakening of the doctrine of LPP which compulsory disclosure of legal advice will almost always involve.

 

56. My conclusion is therefore that regulation 12(5)(b) was engaged, but only by reason of the potential unfairness to the Council in having to disclose the precise terms its legal advice, and not by reason of any weakening in the doctrine of LPP generally which compulsory disclosure would involve.  

 

Regulation 12(5)(d)

(i) Should I permit the LGO to rely on reg. 12(5)(d)?

57. It will be recalled that the LGO refused to disclose the Advice, in reliance on the exception in reg. 12(5)(d), but that the IC decided that that exception did not apply owing to the exclusion from it in reg. 12(9) in respect of information which “relates to information on emissions.” Neither the Council nor the LGO sought to contend before the FTT that the IC had been wrong in so deciding. However, at the time of giving permission to bring this appeal I raised the question whether the IC had been right on this point. The written submission on behalf of the LGO in this appeal did not seek to rely on reg. 12(5)(d). However, in my Direction for the oral hearing of 10 July 2013, after completion of written submissions, I set out my provisional views in some detail. They included the following:

 

“(iii) That the First-tier Tribunal’s decision will therefore fall to be set aside as wrong in law.

 

(iv) that the disputed information does not “relate to information on emissions” within EIR reg. 12(9).

 

(v) that the exception in EIR reg. 12(5)(d) is potentially engaged, having regard to s.32(2) of the 1974 Act and the fact that the disputed information was provided by the Third Respondent to the Second Respondent on a confidential basis;

 

(vi) In re-making the First-tier Tribunal’s decision it will therefore be necessary for it to be determined, as a matter of fact, whether reg. 12(5)(d) is engaged, and if so what the outcome of the required public interest balancing exercise should be. The Appellants’ contentions based on partial and (in their contention) misleading disclosure of the disputed information are of potential relevance to that exercise.

 

(vii) That the Upper Tribunal, rather than remitting this matter to a fresh First-tier Tribunal for redetermination, can properly and should remake the First-tier Tribunal’s decision by making the necessary findings of fact under (vi) above.”

 

58. By letter dated 19 December 2013 to the Upper Tribunal, and copied to the other parties, the LGO’s solicitors stated that the LGO did now wish to contend that reg. 12(5)(d) was not excluded by reg. 12(9). By email to the parties dated 6 January 2014, written on my instructions, the Upper Tribunal Office stated that should any of the other parties wish to object to that change of position, I would rule on that at the hearing. In her Skeleton Argument, dated 8 January 2014, Miss Proops made submissions in relation to reg. 12(5)(d), including submissions as to whether it was engaged and as to the public interest balance. By letter to the Upper Tribunal and the other parties dated 13 January 2014 Mr W said that he did object to the LGO’s change of position, because he considered that the change would be detrimental to his position. But he then went on in the letter to make submissions as to why he contended that the IC had been right to decide that reg. 12(5)(d) was excluded by reg. 12(9). He further stated that if either reg. 12(5)(b) or 12(5)(d) did apply, and the outcome of the case therefore depended on a “public interest test”, he “would not mind” because it was clearly in the public interest that the Advice should be disclosed.

 

59. At the hearing, at which Mr W was not of course present, I did not expressly rule on whether the LGO should be permitted to change its position, but I heard argument from Miss Proops on the issues arising under reg. 12(5)(d).

 

60. I am of the clear view that I should determine the issues arising under reg. 12(5)(d). No injustice to Mr W arises because he has in my view had clear notice, since my Direction of 10 July 2013, that I proposed to do so. He has not suggested, whether in his letter of 13 January 2014 or elsewhere, that there is any further evidence or argument in relation to reg. 12(5)(d) which he has not had the opportunity to put before me. If I had remitted the appeal to be determined by a fresh FTT, the LGO would have been able to raise reg. 12(5)(d).

 

(ii) Was regulation 12(5)(d) excluded by reg. 12(9): does the Advice “relate to information on emissions”?

61. Regulation 12(9) of the EIR provides that to the extent that the environmental information to be disclosed “relates to information on emissions”, a public authority shall not be entitled to refuse to disclose that information under an exception in reg. 12(5)(d) to (g). Given that reg. 12(9) refers to the “environmental information to be disclosed”, the words “relates to information on emissions” must in my judgment be construed with close reference to the definition of “environmental information” in reg. 2(1). That definition includes, by virtue of limb (b), “information ….on ….factors, such as …..emissions…”.

 

62. Had limbs (a) and (b) of the definition of “environmental information” stood alone, it might well have been right to construe the words “information on emissions” in reg. 12(9) broadly, so as to include some of or all of the information which is in fact specified in limbs (c), (d), (e) and (f). However, given the existence of limb (c), which includes “information ….. on ….. measures, such as ….legislation ….. designed to protect those elements”, I find it impossible to construe the words “information on emissions” in reg. 12(9) as covering anything beyond information relating to the nature, extent etc of the emissions themselves. Those words do not in my judgment extend to legal advice as to the effect of legislation designed to protect the environment by regulating emissions, which in my judgment falls within limb (c) rather than limb (b) of the definition of “environmental information”.

 

63. However, reg. 12(9) does not apply only to “information on emissions”, but rather to information which “relates to information on emissions”, and the question is then as to the meaning and effect of the words “relates to”. Does that widen the meaning of “information on emissions” so as to include matters which only fall within the definition of “environmental information” because they are within heads (c), (d), (e) or (f) of that definition? In particular, is the Advice within reg. 12(9) because it contains legal advice as to the meaning and effect of the legislation relating to clean air, with specific reference to the emissions complained about by Mr W?

 

64. In my judgment, and in agreement with the submission of Miss Proops, the answer to that question is “no”. In my judgment the advice as to the Council’s legal powers to control the emissions from the neighbours’ chimneys cannot properly be said to be said to be information which “relates to information on emissions.” Suppose that the Council had sought advice, without reference to any particular case, as to the effect of the CAA and the EPA in relation to emissions from domestic chimneys in a smoke control area. In my view that advice would not have been information “which relates to information on emissions”, it would have been advice which relates to “….. legislation ……. affecting or likely to affect the elements and factors referred to in (a) and (b)”. In my view it makes no difference that the Advice in the present case was sought by reason of Mr W’s complaint about the emissions from the neighbours’ chimneys. In substance the Advice did not “relate to” information as to the particular nature and extent of those emissions, but rather it related to the meaning and effect of the legislation.

 

65. In my judgment, therefore, even when I take into account, as required by Article 4 of Directive 2003/4EC, that the exceptions in reg. 12(5) must be construed restrictively (and therefore presumably that reg. 12(9) must be construed broadly),the Advice only falls within reg. 12(9) “to the extent that” it contains information relating to the nature and extent of the emissions themselves.

 

66. Paragraph 14 of the IC’s published Guidance Note relating to reg. 12(9) is as follows:

 

“Identical information can fall within several aspects of regulation 2(1). A lot of information is environmental because it is on a measure affecting, or likely to affect, the elements of the environment listed in regulation 2(1)(a) directly or via one of the factors mentioned in 2(1)(b). However, regulation 12(9) will only be relevant where information falls within the definition of environmental information directly under regulation 2(1)(b). In other words it will only apply where the information is directly linked to emissions.”

 

67. My construction of reg. 12(9) accords with the third sentence of that passage, as I read it. I do not, with respect, find the last sentence of that passage particularly helpful, as it seems to me to substitute another test (whether the information is “directly linked” to emissions), for the wording of reg. 12(9).

 

68. Mr Capewell’s skeleton argument contends that “the content of the disputed information shows that it is, as a matter of fact, directly concerned with the emissions themselves. It is therefore both “information on emissions” and information which “relates to information on emissions””. As I have said, it seems to me that that is to substitute what may be a somewhat different test, namely whether the information is “directly concerned with the emissions themselves”. But in any event, for the reasons set out above I do not agree that the vast majority of the Advice is “directly concerned with the emissions themselves”. The Advice relates primarily to the meaning and effect of the legislation relating to emissions from chimneys in a smoke control area.  

 

69. Mr W argues as follows in his letter to the Upper Tribunal dated 13 January 2014:

 

“I say that if the information focuses on the appropriate enforcement mechanism, then it inevitably has to include information on the emissions themselves. For example, it has to discuss the question of whether or not the emissions comprise ‘smoke’ alone, or if they also include ‘fumes’ or ‘gases’ – and that is “information on emissions”. Likewise, it also has to discuss the question of whether or not ‘fumes and gases’ are ‘products of combustion’ – and that is “information on emissions”.

 

There are small parts of the Advice which could be argued to relate to the physical composition and extent of the emissions. However, for the reasons set out more fully in the Closed Annex to this decision, I do not agree that even those passages contain information which “relates to information on emissions”. If and so far as they do so, it may well be that they should be regarded as de minimis, in the context of the Advice as a whole. If that is not right, then there is in my judgment no reason why the exception in reg. 12(9) should require the whole of the Advice to be disclosed. The exception applies only “to the extent that” the information relates to information on emissions.  The purpose of the exception in reg. 12(9) is that particular significance is attached to information on emissions. I see no reason why only the specific passages which I have referred to in the closed Annex could not be disclosed. It would not be necessary to see the rest of the Advice to understand the information in those specific passages, to the extent that they contain information relating to information on emissions

 

(iii) Is regulation 12(5)(d) engaged?

70. By reg. 12(5)(d) a public authority may refuse to disclose information to the extent that its disclosure “would adversely affect the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law.”

71. In my judgment the IC and the LGO are correct in submitting that the effect of (a) the prohibition in s.32(2) of the 1974 Act on the LGO disclosing information obtained in the course of an investigation and/or (b) the express agreement by the LGO that it would keep the Advice confidential are such that disclosure of the Advice would “affect the confidentiality of the proceedings” of the LGO, within the meaning of reg. 12(5)(d). I have been referred to decisions of FTTs to that effect in EA/2011/0024 (Gore) and EA/2011/0180 (Dalley). Further, it is in my judgment clear that disclosure would “adversely” affect that confidentiality.

72. I at one time wondered whether a direction to disclose the Advice would affect the confidentiality of “the proceedings” of the LGO. I considered that those words might relate only to matters such as formal meetings and hearings conducted by public authorities. I am satisfied, however, that they are sufficient to include the whole process of an investigation carried out by a body such as the LGO. In my view, where such a body receives confidential information in the course of an investigation which it conducts under statutory powers, a direction to disclose that information would “adversely affect the confidentiality of the proceedings”.

73. Section 32(2)(a) of the 1974 Act contains an exception (from the general prohibition on disclosure) where the disclosure is “for the purposes of the investigation and of any report, statement or summary under section 30, 31 or 31B above.” However, it was not in my judgment necessary for the LGO to disclose the Advice itself (as opposed to its broad effect) for the purpose of explaining his decision not to investigate Mr W’s complaint further. In any event, it seems to me that where the LGO expressly confirms, in relation to advice subject to LPP which is voluntarily disclosed to it by a local authority, that it will keep the information confidential, the exception in section 32(2)(a) could not override the LGO’s express obligation of confidentiality, even if the LGO considered it necessary to disclose the whole of the advice for the purposes of his investigation or a report.

 

The public interest balancing test

(a) The time issue

74. The First-tier Tribunal decided that, in determining whether there had been misrepresentation as to the contents of the Advice, it could not take into account events after the date of the request for information, or, at the latest, the time for statutory compliance with that request (around 30 September 2011). Miss Proops’ submission in her Skeleton Argument was that that was right: DBERR v IC and Friends of the Earth (EA/2007/0072), para. 110. At the hearing she contended, I think, that I could take into account events down to the LGO’s review decision on 3 November 2011, although nothing material appears to have happened between those two dates.

 

75. Mr W contends that the First-tier Tribunal was wrong to leave subsequent correspondence out of account. In his written submissions and skeleton argument on behalf of the Council in this appeal, Mr Nicholls examined the correspondence both before and after the LGO’s review decision, with a view to demonstrating why there was no misrepresentation. He did not seek to limit the exercise to correspondence down to September (or November) 2011. When pressed at the hearing, I understood his primary case to be that, as a matter of strict law, later correspondence could not be taken into account, but that he had “some sympathy” with the view that it could. His oral submissions on misrepresentation were not confined to looking at the correspondence down to 2 November 2011.

 

76. The rationale for not taking into events occurring after the time for compliance with the information request is that under s.50(1) of FOIA the IC has to decide “whether, in any specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance with the requirements of Part I.” However, in the present case Mr W contends that it is material, in weighing the public interest balance, that the contents of the Advice have been misrepresented. It would seem unsatisfactory if correspondence after around September 2011 could as a matter of principle not be taken into account. To disregard it could result in (i) deciding the case on the basis that there had by that time been a misrepresentation, notwithstanding that it had later been corrected; or (ii) deciding the case on the basis that there had not by then been a misrepresentation, notwithstanding that a misrepresentation was made later. The answer to a case of type (ii) might simply be that, if the complainant could show a later misrepresentation, his remedy is to make a further request. It may be partly for this reason that the Council has wished to make submissions in relation to the later correspondence. It might be something of a Phyrric victory if the whole case had to be reconsidered pursuant to a later request by Mr W.

 

77. It seems to me that in this sort of case there may be at least two possible routes by which subsequent correspondence can be looked at. The first is if the later correspondence can be said to throw light on what was meant in earlier correspondence. The second is that, if the correct decision, on the basis of events down to the time for compliance with the request, is that the information should have been disclosed, later events might be relevant in determining what steps the IC (or the FTT on appeal) should direct the public authority to take, under section 50(4) of FOIA. For example, if at the date of the public authority’s review decision there was a misrepresentation of the contents of the legal advice which would have swung the public interest balance in favour of disclosure, it might be permissible for the IC, or FTT on appeal, not to direct disclosure if the misrepresentation had subsequently been remedied. However, given that the FTT’s task under s.58 of FOIA is to determine whether “the notice against which the appeal is brought is … in accordance with the law”, I have difficulty in seeing how events after the date of the IC’s Decision Notice can ever be taken into account. That would on any view exclude the correspondence in May 2012.

 

78. However, because of the way in which matters have been approached by both Mr W and the Council, I propose to look at the public interest balance down to the end of May 2012, thus taking into account the correspondence in that month.

 

(b) Misrepresentation: potential significance

79. In Foreign and Commonwealth Office v IC (EA/2007/0092) the FTT considered occasions when the public interest would be likely to “trump” the preservation of LPP, and said at para. 29 that

 

“………….. the most obvious cases would be … that there is reason to believe that the authority is misrepresenting the advice which it has received, where it is pursuing a policy which appears to be unlawful or where there are clear indications that it has ignored unequivocal advice which it obtained.”

 

Mr W has throughout contended that the Council and/or the LGO must have deliberately misrepresented the contents of the Advice. Indeed, he has made repeated accusations that the Council has “lied” about what the Advice said.

 

80. In my judgment the potential significance of that, if true, would be that there would be likely to be a greater public interest in the contents of the Advice itself being disclosed than if the Council had given an undoubtedly correct summary of the effect of the Advice. But that would of course not be by way of some sort of punishment of the Council, but simply because it would be in the public interest to correct an inaccurate statement of the effect of the Advice which the Council had given. It seems to me that it would therefore not matter very much, from the point of the view of the weight to be attached to this factor in the public interest balancing exercise, whether the misrepresentation was deliberate, negligent or entirely innocent.

 

81. Further, a misrepresentation will not generally result in liability for damages in tort, and will not entitle a party to rescind a contract, unless the representation is unequivocal. A statement which is unclear, and which would on one reading be a misrepresentation, will not generally suffice. However, the public interest in correcting an unclear and potentially misleading statement as to the effect of legal advice may be as great, or nearly as great, as that in correcting a statement as to its effect which is clear but wrong. In my judgment, therefore, when considering this issue it is relevant to consider not only whether the Council (and/or the LGO) made statements which were positively wrong, but whether they made statements which were liable to mislead or confuse the reader, and so have generated a confusing picture as to the effect of and reasoning behind the Advice.

 

82. For similar reasons, it in my judgment matters little whether it is the Council or the LGO (or their statements in combination) which has generated the inaccurate or confusing picture. Mr Nicholls and Miss Proops therefore in my view therefore cannot be right in submitting that it is only a misrepresentation by the Council which could be material. The Council and the LGO are each public bodies with a responsibility, if they decided to communicate the effect of the Advice, to do so accurately and in a way which was not reasonably open to misinterpretation. If the combined effect of the explanations which they give was muddled and potentially misleading, there is a clear public interest in the position being clarified. I stress that this is not of course a question of whether the Advice was right, but whether the statement of its effect was misleading.

 

83. I also do not accept the submission made to me at the hearing on behalf of both the LGO and the Council that, because Mr W has throughout based his case on “misrepresentation”, I can only take into account the public interest in dispelling confusion if I am satisfied that there was something amounting to a positive misrepresentation. It has clearly throughout been a major plank of Mr W’s case that, in view of the apparently inconsistent explanations as to the contents of the Advice which have been given by the LGO and the Council, there is a public interest in the Advice itself being made public so that the true position can be made clear. The Council and LGO cannot in my judgment plausibly contend that this was a case which they were unprepared to meet. I cite, for example, from Mr W’s statement in his grounds of appeal to the FTT (p.46E of the Bundle):

 

“Both the LGO and the Council ….. give completely contradictory representations of what that “advice” actually says. Therefore, at least one (or even both) of them must be representing that advice.”

 

(c) “Misrepresentation”: the facts

84. It has been clear from an early stage that Mr W’s contention has been that what is being emitted from the neighbours’ chimneys must include “fumes” and “gases”, as defined in the EPA, and that although the Council cannot proceed against the neighbours under the EPA in respect of the emissions in so far as they comprise “smoke”, it can do so in so far as they comprise “fumes” or “gases”. Thus, Mr W’s letter to the Council dated 14 March 2011 included the following:

 

“So, 79(1)(b) is concerned with “smoke” and nothing else, while 79(1)(c) is concerned with “fumes and gases”. Our ‘Concise Oxford Dictionary’ defines ‘fume’ as “(esp. malodorous or harmful) smoke, vapour …”etc. Therefore, 79(1)(b) is not concerned with smell, but 79(1)(c) is concerned with smell. Now, Mr Grove [the Council’s Environmental Health Officer] will know that throughout this complaint we have always stressed that smell was a major part of our concerns – even to the point of saying that the smell was worse than the smoke. The phrase “malodorous smoke” is probably the most accurate description we have of what we have been complaining about. Therefore, the correct, appropriate subsection for Mr Grove to use when considering our complaint is not 79(1)(b), but 79(1)(c).”

 

85. Having received the Advice, on 20 May 2011 the Council wrote to Mr and Mrs W. The letter began by stating that it had been prepared in conjunction with Legal Services, but did not mention that independent legal advice had been taken. The important passage in the letter was the following:

 

“Section 79(3) of the EPA states that smoke from chimneys (regardless of its colour or density) from private dwellings within a smoke control area is outside the scope of the statutory nuisance provisions. I do not intend to restate why the CAA is the applicable legislation as this has been dealt with in previous correspondence, however, I would point out that the products of combustion are “smoke” and not “fumes or gases” and therefore s.79(1)(c) of the EPA is not applicable. By seeking to erroneously use this section and take enforcement action on the basis of fumes and gases (rather than smoke) being emitted from the chimneys in question would in effect be an attempt to reintroduce the statutory nuisance regime to an issue of what is in fact smoke from a private dwelling in a SCA. It is a clear principle of regulatory enforcement that Enforcing Authorities apply the regime specifically created by Parliament for that purpose. In this case it is clear that the legislative regime for dealing with smoke from chimneys in SCAs is the CAA.”

 

86. In a later section, headed “case law on the definition of smoke”, of this long letter of 20 May 2011, the Council referred to the judgment of Kennedy LJ in Griffiths v Pembrokeshire County Council [2000] Env LR 622, in which he said that the local authority’s abatement notice and summons, complaining of “smoke” within s. 79(1)(b) of the EPA, was adequate to include a complaint about the smell of smoke, and that it was not necessary to frame the complaint about the smell of smoke as a separate complaint under s.79(1)(c) or (d). (The copy of that letter in the bundle did not include that later section, but a full copy was handed to me at the hearing).

 

87. The letter of 20 May 2011 in my view left it unclear whether the Council was saying (i) that what was being emitted from the neighbours’ chimneys did not, as a matter of physical or chemical analysis, include anything falling within the EPA definition of “fumes” or “gases”, or (ii) something along the lines that because what was being emitted plainly included “smoke”, it could not as a matter of the correct construction of the legislation also be “fumes” or “gases” within the meaning of the EPA , even if it included elements falling within a literal reading of the EPA definitions  of “fumes” and “gases”.

 

88. On 25 July 2011 the Council informed the LGO that it had taken “independent legal advice”.

 

89. On 7 September 2011 the LGO wrote to Mr W setting out the LGO’s “provisional decision” that he did not intend to investigate Mr W’s complaints further. It is relevant to note the following points set out in that letter. In para. 6 it recites that the complainants had first “lodged complaints about smoke” from two wood burning stoves in 2010.

 

90. Para. 10 of the LGO’s provisional decision said:

 

“In April 2011 the Council obtained independent legal advice as to whether it would be possible to use the statutory nuisance regime to seek to control emissions from the stoves. The unequivocal advice received was that the smoke control area as designated under the CAA provided the appropriate enforcement framework and it would not be appropriate to use statutory nuisance provisions. The Council has asked that the advice is kept confidential so I have not shared it with the complainants.”

 

91. Para. 11 included (under the heading “my view”) the following sentence:

 

“The Council has ……….. now taken legal advice and that very clearly states that the Council should consider whether there are offences under the CAA rather than under the statutory nuisance powers.”

 

92. Para. 14 noted that “….it is going to be the case that there can be the emissions of smoke from the chimneys and the Council will not be able to do anything to control or prevent that happening.”

 

93. I pause here to observe that the LGO’s letter of 7 September 2011 did not seek to meet head on Mr W’s contention that the emissions included elements falling within the EPA definitions of “fumes” and “gases”, and that enforcement under the EPA was therefore possible.

 

94. On 31 October 2011 Mr W wrote to the LGO in effect making that point:

 

“Let us firstly make one point absolutely clear to you: We have always accepted that WE can NOT use the EPA to deal with Smoke Nuisance. Because we live in a Smoke Control Area we have to use the CAA to deal with Smoke Nuisance – and we repeat, we fully accept that.

 

However, sections 79(1)(c) and 79(4) EPA are ABSOLUTELY UNEQUIVOCAL that we can use them to deal with nuisance due to odour from fumes and gases emitted from a building. It is the use of these sections 79(1)(c) and 79(4) that [the Council] is denying us.

 

……..it is DISHONEST of the Council to pretend that we are asking them to use sections 79(1)(b) and 79(3)(i) of the EPA – we are not”

 

95. On 20 December 2011 the LGO sent to Mr W a final decision to discontinue investigation of the complaint. This was in substantially the same terms as the provisional decision which had been sent on 7 September, but it is interesting to note that some additions were made, seemingly in order to meet Mr W’s very clear contention that the emissions included fumes and gases. My underlining in the following passages indicates the additions:

 

“6. Mr and Mrs A and Mr and Mrs B first lodged complaints about smoke, smell and fumes from two wood burning stoves in March 2010.

 

………………………………………..

 

10. I have seen independent legal advice dated 17 April 2011 obtained by the Council as to whether it would be possible to use the statutory nuisance regime to seek to control emissions from the stoves. The advice addressed both the question of emissions of smoke, gases and odour. The unequivocal advice received was that the smoke control area as designated under the CAA provided the appropriate enforcement framework and it would not be appropriate to use statutory nuisance provisions in respect of any emissions from the stoves. The Council has asked that the advice is kept confidential so I have not shared that with the complainants.”

 

96. The LGO was saying in plain terms, therefore, that the effect of the Advice was that the Council could not proceed under the EPA in respect of any emissions from the stoves, even to the extent that they consisted of or included fumes, gases or odour. I do not think that any of the Respondents has contended, whether before the FTT or in this appeal, that that was not an accurate summary of the effect of the Advice.

 

97. Then on 27 December 2011 the eagle-eyed Mr W wrote to the Council setting out (although without attribution) the second and third sentences of para. 10 of the LGO’s final decision and asking the Council to answer 4 questions regarding that passage. The Council replied on 6 January 2012. I set out Mr W’s questions, with the Council’s answers in bold.

 

“1. Do you agree that the “independent legal advice” does actually state that the CAA is the appropriate enforcement framework to deal with problems caused by the emission of fumes or gases or odours from wood burning stoves in smoke control areas? No it does not

 

2. If the answer to question 1 is “yes”, please tell us if you agree with the independent legal advice. Not applicable.

 

3. If you answer to question 2 is “yes”, please tell us which sections of the CAA you will use when you come to do your job of enforcing the CAA regarding the problems caused by the emissions of fumes or gases or odours from wood burning stoves in smoke control areas. Not applicable.

 

[4]. We always thought that the smoke control area legislation in the CAA was concerned with smoke alone – and therefore it was not the appropriate legislation for dealing with the emission of fumes or gases or odours from wood burning stoves in any private dwellings, whether those dwellings were in smoke control areas or not. Were we wrong in this view?” No

 

98. In my view the combined effect of the information which the LGO and the Council had given up to this point was liable to create substantial confusion, in the mind of any reasonable reader, as to what the Advice did say. To summarise the position, Mr W was contending that the Council could proceed under the EPA in respect of the emissions, to the extent that they consisted of “fumes” or “gases”, as defined in the EPA. The LGO had said in its final decision of 20 December 2011 that the Advice was unequivocally to the effect that it was not possible to use the EPA in respect of any of the emissions, whether consisting of smoke, fumes, gases or odour, because “the smoke control area as designated under the CAA provided the appropriate enforcement framework and it would not be appropriate to use statutory nuisance provisions in respect of any emissions from the stoves.” The natural implication from that was that the only appropriate statutory mechanism for controlling the emissions, whatever their nature or description, was the CAA. However, the Council then stated in its letter of 6 January 2012 (answers 1 and 4) that the Advice did not say that the CAA was the appropriate enforcement framework in respect of fumes or gases. On the face of it there was in my view an unexplained conflict between what the LGO had said in its final decision and the answers given by the Council on 6 January 2012.

 

99. I am quite satisfied that Mr W was genuinely confused as to what the Advice said, and moreover that any reasonable reader was liable to be confused.

 

100. To continue with the history, on 17 January 2012 Mr W wrote to the LGO pointing out what he considered to be the difference between what the LGO and the Council appeared to be saying in relation to control of “fumes, gases and associated odours” in a smoke control area. He did, however, there credit the Council as saying that neither regime could be used, but continued that “the Council base this on their assertion that the emissions comprise smoke alone – which is obviously untrue.”

 

101. In his grounds of appeal in April 2012 against the IC’s decision, Mr W made precisely this point, contending:

 

“[the Council] and [the LGO] disagree about what the legal advice actually says. This is undeniable proof that either [the Council] or [the LGO] is misrepresenting what the advice actually says about the use of the [CAA] in smoke control areas.”

 

102. On 18 May 2012 the LGO wrote to Mr W setting out the results of “a review of your complaint file”, which was to the effect that the LGO’s decision would not be altered. However, in the course of explaining that the writer did say:

 

“A further argument you put forward is that the Council appears to be saying, in its correspondence to you dated 6 January 2012, that neither the CAA nor the EPA apply to a nuisance created by the smell of smoke. I believe the Council’s letter to you of 6 January may have confused you on this issue. I have asked the Council to write to you again clarifying in more detail the basis of its advice in that letter, but I regret the legal advice itself is privileged information and cannot be disclosed.”

 

103. The LGO had therefore, in my view unsurprisingly, concluded that Mr W had been confused by the Council’s explanation as to what the Advice said, and had considered this sufficiently important to request the Council to clarify its explanation.

 

104. The Council had in fact already given a further explanation in a letter of 17 May 2012 to Mr W, stating that it wished to “expand upon” the answers to questions 1 and 4 which it had given on 6 January 2012. The expanded answers were as follows:

 

“1. The content of the legal advice is covered by LPP and therefore cannot be disclosed to you. However, in order to try and answer your question as fully as possible, I can confirm that the legal advice does not state that the CAA is the appropriate enforcement framework to deal with problems caused by the emission of fumes or gases or odours from wood burning stoves in smoke control areas. It sets out that the EPA has specific provision for such emissions.

 

4. For the purposes of practical enforcement it is agreed the CAA is not the appropriate legislation for dealing with emissions other than smoke, in the context of this matter. That is our interpretation of the legislation. It may be beneficial to you to obtain your own independent legal advice on this issue if you are not satisfied with our interpretation.”

 

105. That in my view did nothing to dispel the confusion which had been generated by the Council’s letter of 6 January 2012. It did not explain why, if the Advice was to the effect that the CAA could not be used in respect of the emissions to the extent that they consisted of fumes or gases, it was apparently also to the effect that the EPA could not be used either.

 

106. The Council, through Mr Nicholls, contends that the answer to Mr W’s contention that the Advice was misrepresented is that the Council characterised the emissions as “smoke”, and not as “fumes” or “gases”, and on that footing there was no misrepresentation as to the content of the Advice, and neither did the Council ignore the Advice. I think that that contention appears most clearly from the following paragraphs of his Skeleton Argument in this appeal:

 

“41. Mr W’s true criticism is that the Council has characterised his complaint as being concerned with smoke and not fumes, gases or odours. The letter of 20 May 2011 says that clearly. Mr W expresses very strong criticism of the Council for saying that his complaint is about smoke. But the question whether that is a correct characterisation is not in issue before this Tribunal. The only question is whether Mr W’s criticism provides a basis to believe that the Council has ignored or misrepresented the legal advice it has received. The Council has said that the complaint is about smoke and such complaints are not within the scope of the EPA. Nothing in those statements, nor Mr W’s criticism of the Council’s characterisation of his complaint can begin to justify the assertion that the Council had misrepresented or ignored the advice it had received. Indeed it follows from that characterisation of the complaint that the relevant legislative regime is the CAA and not the EPA.

 

42. Mr W’s argument that the Council has ignored legal advice is based on the premise that he does not agree with the proposition that the product of combustion is smoke. But the fact that he disagrees with an argument cannot justify the assertion that the legal advice has been ignored or misrepresented.

 

47. It is right that the Council said that the complaint related to smoke. Mr W disagrees. But the fact that he disagrees cannot justify his assertion that therefore the Council has ignored or misrepresented the legal advice it has received.

 

48. Mr W’s case assumes what he seeks to prove. He says the complaint must be regarded as being about fumes and gases and that therefore when the Council says that the complaint is about smoke it must follow that the Council is misrepresenting or has ignored legal advice.

 

49. There is no basis for that. The mere fact that Mr W disagrees with the Council cannot logically mean that it is misrepresenting or ignoring its legal advice. Indeed that statement makes no comment about legal advice received, so it is not possible to see how there could be any misrepresentation.”

 

107. I accept that Mr Nicholls’ contention may be an answer to the contention that the Council had misrepresented the effect of the Advice, but it is no way an answer to the contention that the combined effect of what had been said by the Council and the LGO was very confusing as an explanation as to the effect of the Advice

 

108. It is plain that the question whether the emissions from the chimneys should properly be characterised as “fumes” or “gases”, whether instead of or in addition to “smoke”, was at the heart of the issue whether the EPA mechanism could be used in respect of the emissions. It is further plain, as I have said above, that that is potentially a question not simply as to the physical composition of what was being emitted, but as to the construction and effect of the legislation. No lawyer, asked to advise whether the Council could proceed under the EPA in respect of the emissions by characterising them as “fumes” or “gases, could properly have given advice to the effect that “I am instructed by the Council and assume that the emissions are “smoke”, and on that footing the legal position is as follows ….” A legal adviser who did that would be taking as given a proposition as to whose correctness he was in effect being asked to advise.

 

109. The question to which Mr W was seeking an answer was why the Advice said that the Council could not proceed under the EPA in respect of “fumes” or “gases”. It was not an answer to that simply to say that it was because the Council had decided to characterise the emissions as “smoke”. That amounts to saying no more than that the emissions are “smoke” because the Council says that they are. It was for Mr W, not the Council, to say what his complaint was. It was for the Council to explain why the Council could not proceed under the EPA. I agree, of course, that whether the Council’s characterisation of the emissions was correct is not directly in issue in this appeal. But what is in issue is whether the Council gave a confusing and therefore potentially misleading explanation of the effect of the Advice.

 

110. For the avoidance of doubt, however, I should make it clear that I do not find that there was any intention on the part of either officers of the Council or the LGO to mislead Mr W. There is no evidence that that was so. There is no evidence whatsoever that Council officers or persons acting for the LGO have “told lies”, as Mr W repeatedly asserts.

 

(d) Ignoring the Advice.

111. Another of Mr W’s contentions is that the Council has “ignored” the Advice. There is in my judgment no evidence of that. In short, as the LGO has said, the Advice was to the effect that the Council could not do what Mr W was requesting it to do, namely to proceed under the EPA in respect of the emissions.

 

(e) Waiver of privilege

112. If LPP in the Advice was waived by the Council by whatever is the material date, the LGO was in any event not able to rely upon reg. 12(5)(b) as a ground for not disclosing the Advice. Disclosure cannot adversely affect the course of justice if privilege has been waived. Waiver of privilege by the Council would in my judgment probably also have prevented reliance by the LGO on reg. 12(5)(d), in the present case. If the Council waived privilege, the Advice ceased to be confidential, and it does not therefore seem to me that it could properly be said that requiring the LGO to disclose the Advice would adversely affect the confidentiality of the LGO’s investigation.

 

113. I have delayed dealing with waiver until now, notwithstanding that it logically comes in earlier, because it requires consideration of the correspondence, which I found it more convenient to deal with fully under the “misrepresentation” heading.

 

114. In Dunlop Slazenger International Limited v Joe Bloggs Sports Limited [2003] EWCA Civ 901, at para. [11], a distinction was drawn by Waller LJ between reliance on or reference to the effect of a document, which will not amount to waiver, and reliance on or reference to the content of the document, which will amount to waiver.

That distinction was adopted by Akenhead J in ACD (Landscape Architects) Limited v. Overall [2011] EWHC 3362 (TCC).

 

115. If the material date for determining whether privilege was waived is around the end of September 2011, it is in my judgment clear that there was no waiver. The Council’s letter of 20 May 2011 stated merely that it had been prepared in conjunction with Legal Services, and did not refer to independent advice having been obtained. The mere assertion, in a letter, of propositions, even if they are derived from legal advice, cannot be a waiver of privilege unless that advice is referred to as the basis of the propositions, which it was not. For this reason it is in my view irrelevant, as far as waiver is concerned, whether the Advice did or did not refer to the case of Griffiths v Pembrokeshire County Council, cited in the letter of 20 May 2011. Nor in my opinion was privilege waived by what the LGO said in her provisional decision dated 7 September 2011, even if that was said with the consent of the Council. Whether reference has been made to the content of advice, as opposed merely to its effect, seems to me to be essentially a question of degree, and in my view the brief references to the Advice, in paras. 10 and 11 of the LGO’s provisional decision, were to no more than its effect.

 

116. I am of the same view even if I am permitted, when considering the issue of waiver, to take into account the correspondence to Mr W from the LGO and the Council down to May 2012. Those communications were in my view intended to do no more than to summarise the effect of the Advice. They did not cross the line into setting out or summarising the contents of all or part of the Advice.

 

(f) Public interest factors in favour of maintaining the exceptions

 

(1) The main such factor is in my judgment the effect which disclosure would have on the ability of the LGO to obtain legally privileged information from local authorities on the footing that it should remain confidential. As I have noted above, the LGO cannot compel a local authority to provide such information, and there can be no doubt that local authorities would be more reluctant to provide it if they could not be sure that the advice itself would remain confidential. That would risk impeding the efficacy of the LGO’s investigations in cases where the content of legal advice is relevant to the question whether a complaint against a local authority is well-founded. I have been referred to, for example, para. 11 of the FTT’s decision in case EA/2011/0180, where the Tribunal said:

 

“The Information Commissioner referred us to previous Decision Notices (references FER0065671 and FER0349527) which addressed the confidentiality of Ombudsman investigations. These gave, as reasons for maintaining the exception:

 

“It is clear that parties submitting information to the LGO would have expected it to be held in absolute confidentiality, particularly due to the statutory prohibition in place. ……. A disclosure of such information would breach this understanding of confidentiality, and has the potential to cause complainants and witnesses to withhold information or curtail evidence to protect them from exposure in future requests.”

 

We agree that there is a public interest in enabling the Ombudsman to receive information in confidence, so as not to affect adversely his ability to investigate complaints and thus to maintain the accountability and transparency of local government.”

 

Neither that case, nor the ones in the IC Decision Notices referred to, were cases where the information sought to be obtained from the LGO was protected by LPP. The present case is even stronger, in that local authorities in the future would be not merely reluctant but legally entitled to refuse to disclose the legal advice.

 

It would in my judgment be of little comfort to local authorities in the future, when considering whether to disclose legal advice to the LGO, that there were particular features of this present case (i.e. the confusing picture created by the explanations given to date) which had been taken into account in weighing the public interest balance. Local authorities would be unlikely to have either the time or the inclination to delve into the detail of the present case, and could not be sure that some similar special factor would not be said to be present in their case.

 

(2) In addition, there is the factor of the unfairness to the Council in its privileged advice being made public. For the reasons given above, however, this is in my judgment a relatively weak factor in the present case.

 

(g) Public interest factors in favour of disclosure

 

(1) The Advice concerns a question of the construction and effect of environmental legislation which is undoubtedly of general interest and importance, and on which there appears to be no decided case directly in point. This is in my judgment undoubtedly a factor of some weight.

 

(2) That weight is in my judgment increased somewhat as a result of the (in my view) very confusing picture which has emerged from the combined effect of the summaries of the Advice given by the LGO and the Council, as explained above.

 

(h) Conclusion in relation to the public interest balancing test

117. In my judgment the public interest in maintaining the exception under reg. 12(5)(d) very substantially outweighs the public interest in disclosure of the Advice. I consider that the damage which would be likely to be done, if disclosure were to be directed in this case, to the LGO’s ability in future cases to pursue investigations with the benefit of all relevant information by assuring local authorities that legally privileged information voluntarily disclosed will remain confidential, very substantially outweighs the public interest in knowing the contents of the Advice. The “chilling effect” would potentially arise in relation to any future case where legal advice was relevant to an LGO’s investigation. There must be many such cases. By contrast, although the issues of law in the Advice are of some potential importance, they are limited to the question of emissions in a smoke control area. In reaching my conclusion I do not overlook that I am required by reg. 12(2) of the EIR to apply a presumption in favour of disclosure. As Miss Proops submits, the presumption operates so as to provide the default position in the event that the interests are equally balanced, and also so as to inform any decision to be taken under the EIR (see Export Credits Guarantee Department v Friends of the Earth [2011] 1 Info LR 1296, per Mitting J at [24]. However, the presumption is in my judgment clearly rebutted or overridden in the present case.

 

118. My conclusion on the public interest balance would be the same on the footing that I can take into account events only down to around the end of September 2011 or (as the case may be) 3 November 2011.

 

119. I have also considered what my conclusion would have been if I had held that reg. 12(5)(d) is excluded by reg. 12(9), so that only the public interest in maintaining the exception under reg. 12(5)(b) could be taken into account on that side of the scale. In that event I would have decided that the public interest in disclosure outweighs the public interest in maintaining that exception. That would have been my conclusion at whatever time one looks at the position. Even if the right view is that I cannot take into account anything said by the Council and/or the LGO after about the end of September 2011, in my judgment the public interest in knowing what legal advice had been given about the construction of the relevant statutory provisions would have outweighed the public interest in avoiding the potential effects of unfairness to the Council in having to disclose the precise terms of its legal advice.

 

Overall conclusion

120. My conclusion is therefore that the First-tier Tribunal’s decision was wrong in law and must be set aside, but that I re-make its decision by upholding the IC’s decision that the LGO is not required to disclose the Advice.

 

 

Charles Turnbull

Judge of the Upper Tribunal

 11 March 2014