Planning decisions — Charges for copies — Complaint to information commissioner Test of reasonableness of charges — Regulation 8(3) of Environmental Information Regulations 2004 — Appeal allowed
The appellant wished to make copies of papers that were held by his local council in respect of the original planning application for his house. He complained to the respondent information commissioner regarding the level of the council’s charges, namely £6 per building control or planning decision and 50p per sheet for other material.
The commissioner determined the matter under the Environmental Information Regulations 2004. Regulation 8 governed the charges that a public authority was entitled to make in respect of environmental information. Regulation 8(3) provided that a charge for making such information available was not to exceed “an amount which the public authority is satisfied in a reasonable amount”. The commissioner’s case officer made comments to the council, as a result of which they reviewed their charges. The ultimate result of that process was a fee of 50p per sheet for all copies, excluding planning or building control decision notices, for which the charge was increased to £6.50. In response to a query from the commissioner, the council stated that they were satisfied that 50p per copy was a reasonable charge and that £6.50 for a decision notice was justified by the legal significance of the document.
The commissioner took the view that the test of a reasonable charge was a subjective one, that the council had to satisfy themselves of that matter, and that he was not entitled to substitute his view for theirs. He concluded that the council had complied with regulation 8(3) because they were satisfied that their charges were reasonable.
The appellant appealed, contending that the commissioner had not applied the correct test. He submitted that: (i) the commissioner should not have relied upon the council’s view of the reasonableness of the charges, but should instead have carried out a full review; and (ii) regulation 8(3) should be construed so as to give effect to article 5(2) of Directive 2003/4/EC, which stated that a charge “shall not exceed a reasonable amount”.
Held: The appeal was allowed.
(1) The UK government had not been obliged to restate the precise language of article 5(2) in the 2004 Regulations, but had been left with some discretion, or margin of appreciation, as to how article 5 was transposed into domestic law. It had been entitled to take account of the existing domestic law on judicial review and to adopt wording that, when read in the context of that law, provided equivalent protection to that set out in article 5(2). Regulation 8(3) had that effect and it avoided imposing upon the commissioner an unnecessarily burdensome review task.
(2) Regulation 8(3) required the commissioner to consider whether: (i) the council honestly believed that their charging structure did not exceed what was reasonable; and (ii) that was a belief that a reasonable authority, properly directing themselves to the relevant facts and law, could hold, or whether it had been arrived at by taking irrelevant factors into account or ignoring relevant ones. In the instant case, the commissioner had asked the first question, but had failed to address the second.
(3) The time taken by council officers in retrieving the relevant information was an irrelevant factor, as was any possible drop in revenue and increase in workload. A relevant factor was the current government guidance on the topic, which provided that a charge should not exceed the costs of producing the information. Both the council and the commissioner had failed to address relevant issues and had ignored relevant ones. A decision would be substituted that the council should reassess their charges, with a guide price of 10p per A4 sheet, and an option for a higher charging rate, if justified, according to the relevant guidance and reached after proper study, scrutiny, decision and authorisation, with the process for arriving at that charge published and available for public scrutiny.
Phil Michaels appeared for the appellant; Timothy Pitt-Payne (instructed by the Information Commissioner’s legal department) appeared for the respondent.
Sally Dobson, barrister
