“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.”
“ 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.”
“In determining the appeal the Inspector can only deal with the specific planning merits of the proposal before him and not some possible future proposal. I note your comments on the impact of European law in this respect. However, I have taken legal advice which has confirmed that our approach on this point is correct. I note your comments about natural justice and the right to put points at a hearing. However, while I understand your reasons for making such an argument, the Courts have made clear that the written representation method complies with the right to be heard. There is no statutory right for parties to present oral evidence. I am not persuaded therefore that determining this case through written representations would constitute a breach of natural justice, given that the pertinent issues in this case relate to the visual impact of the anemometer.”
“In my opinion, whilst the mast is intended to establish whether a wind farm project would have a viable wind resource, it would not constitute an integral part of an inevitably more substantial development. I am therefore satisfied that this proposal, and any future wind farm application, could proceed independently without frustrating the aims of the [EIA Regulations] or the relevant European Council Directive.”
“…..legal advice privilege has an undoubted relationship with litigation privilege. Legal advice is frequently sought or given in connection with current or contemplated litigation. But it may equally well be sought or given in circumstances or for purposes that have nothing to do with litigation. If it is sought or given in connection with litigation, then the advice would fall into both of the two categories. But it is long settled that a connection with litigation is not a necessary condition for privilege to be attracted: …………… On the other hand it has been held that litigation privilege can extend to communications between a lawyer and a lawyer’s client and a third party or to any document brought into existence for the dominant purpose of being used in litigation. The connection between legal advice sought or given and the affording of privilege to the communication has thereby been cut.”
“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.”
“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.”
“….the courts have for very many years regarded legal professional privilege as the predominant public interest. A balancing exercise is not required in individual cases, because the balance must always come down in favour of upholding the privilege, unless, of course, the privilege has been waived.”
“It is clear …… that …. legal advice privilege must cover also advice and assistance in relation to public law rights, liabilities and obligations.”
“……the Tribunal does not agree with Mr Rosenbaum that LPP merits only “some weight” ………… From the cases referred to above, this Tribunal is satisfied that LPP has an in-built weight derived from its historical importance, it is a greater weight than inherent in the other exemptions to which the balancing test applies, but it can be countered by equally weighty arguments in favour of disclosure. If the scales are equal disclosure must take place.”
“……First, it is not enough that disclosure should simply affect the matters [specified in reg.
“63. The Appellant’s Counsel’s contention that the advice revealed nothing more than PINS would have had to explain to the public in the course of an enquiry or in the Grounds of Resistance in a judicial review of its decision to determine the Planning Appeal by written representations is, in this instance, remarkably close to the mark. 64. If the advice in question had involved a proper and detailed analysis of the legal situation facing PINS and the options open to them, then it is likely that the Tribunal’s conclusions would be very different. But that is not this case.”
“69. The information being requested was used by PINS as the basis for depriving the Appellant and members of the public of their ability to participate effectively in environmental decision-making. Considering the information itself, even if this exception was fully engaged ….. then the public interest balancing test could not produce a result that would prevent disclosure. 70. Where the information requested is the very basis upon which members of the public are deprived of their ability to participate in a planning decision – both by understanding the legal premise of the Inspector’s decision, and by having the opportunity to challenge it – the public interest in disclosure of that information is extremely compelling. One of the objectives of the entire access to environmental information regime is to facilitate such participation (Recital (1) of Directive 2003/4 EEC). 71. The IC recognised the public interest in public authorities acting transparently. In this instance he failed to recognise that where the actions of the public authority appeared to depart from published guidelines which are themselves adopted to promote transparent decision-making, the public interest and transparency around that departure – and the reason for it – becomes a very significant factor in the balancing operation that has to be conducted.”