Over Taylor Biggs

He subsequently made a specific request to the Council for information regarding his and the affected property.  The Council disclosed some information but withheld other documents under the Environmental Information Regulations.  Mr Skinner then made a specific request for disclosure of the legal advice provided by the Council's Solicitors, presumably on the basis that this had driven the Council's decision not to take enforcement action.

Three months later, he complained to the Information Commissioner about the manner with which his request for information had been handled by the Council.  Again, he asked the Information Commissioner to secure disclosure of the Council's legal advice.  The Information Commissioner found that disclosure of the legal advice would adversely affect the course of justice and the public interest prevented disclosure.

Mr Skinner appealed to the first-tier Tribunal.  He complained that the Information Commissioner appeared to have "sided" with the local authority and may have been rushed to make a decision because he had issued a formal appeal against the authority.  He could see no reason why a simple piece of information such as legal advice should benefit from a legal exemption. 

The essential complaint about the decking appears to have been that it was used on sloping land.  To form a level surface, the elevation needed to be raised by more than 300mm from ground level (and potentially more).  Mr Skinner believed the Council had interpreted the rules in such a way that consent would only rarely be required, because there would nearly always be part of the decking less than 300mm above ground level. 

Whilst the Information Commissioner had said the legal advice in question only related to a very specific set of circumstances and therefore unlikely to impact on a significant number of people on a regular basis, the applicant alleged that complaints about decking were the most frequent of those made to the local council's enforcement team, owing to the popularity of development and the sloping topography of North Somerset.

The Tribunal concluded that the legal advice, given by memorandum and email, attracted legal professional privilege, which had not been waived.  Public interest in disclosure did not outweigh that in maintaining the exception. 

Whilst complaints about decking may frequently be made to this Council, the number of complaints alone was not of sufficient importance to outweigh the strong public interest in maintaining the exception.  The Tribunal thought that Mr Skinner might have been under a misapprehension as to the likely nature of the legal advice.  A legal opinion is unlikely to be definitive of the law and unlikely to resolve any uncertainty: it would simply add to the debate.  If litigation is in prospect, legal advice may discuss a range of uncertainties as much it might provide certainty.  It may discuss relative merits and the consequences of a litigation tactics. 

In the Tribunal's opinion, it would take a substantial public interest to the contrary to justify disclosure, for legal advice is unlikely to provide the ambiguous clarity that Mr Skinner was hoping for.  His appeal was therefore dismissed.

Skinner v North Somerset Council

First-Tier Tribunal 1 March 2011