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Kester Dean v Information Commissioner

24 April 2024
[2024] UKFTT 330 (GRC)
First-tier Tribunal
A man complained that his council didn't tell him about building work next door, impacting his home and wellbeing. He requested photos of the planning notices (which should have notified neighbours). The council and the Information Commissioner refused citing data protection. The court decided the public's right to know about the council's mistakes outweighed the privacy of the builder, ordering the council to release the photos.

Key Facts

  • •Kester Dean appealed an Information Commissioner's decision regarding the non-disclosure of photographs showing planning notices for applications 22/00213/FUL and 22/02172/FUL by Shropshire Council.
  • •Dean argued the council failed to properly notify him and his neighbours of the planning applications, leading to significant disruption and overlooking of his property.
  • •The Information Commissioner ruled the photographs were personal data of the developer and their release would be unexpected and cause distress.
  • •The Tribunal found the Commissioner's decision was flawed, emphasizing the public interest in disclosing the council's failure to comply with planning law and the Aarhus Convention.
  • •The appeal concerned the interplay between data protection (GDPR), environmental information rights (EIR), and the right to public participation in planning decisions.

Legal Principles

Public access to environmental information (Aarhus Convention, EIR).

Aarhus Convention, Environmental Information Regulations

Public participation in planning decisions (Town and Country Planning (Development Management Procedure) (England) Order 2015).

Town and Country Planning (Development Management Procedure) (England) Order 2015

Data protection rights (GDPR) must be balanced against other fundamental rights, including access to information and public participation.

GDPR

The burden of proof lies on the data controller to demonstrate that the processing of personal data is necessary for its legitimate interests.

GDPR Article 6(1)(f)

Failure to comply with planning notification requirements can lead to a quashing of planning permission or other remedies. (R (Guiney) v Greenwich LBC [2009] J.P.L. 211 referenced).

R (Guiney) v Greenwich LBC [2009] J.P.L. 211

Outcomes

Appeal allowed.

The Tribunal found the Information Commissioner's decision was erroneous in balancing data protection rights against the public interest in transparency and access to information relating to the council's failure to follow planning procedures. The photographs, though containing some personal data, were primarily evidence of the council's failure to meet its obligations under planning law. The potential harm caused by their disclosure was minimal compared to the public interest in their release.

Substituted Decision Notice: Shropshire Council ordered to disclose photographs.

To demonstrate compliance (or lack thereof) with planning notice display requirements. This addresses the council's failure to provide adequate information to residents about planning applications and their right to participate in the planning process.

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