Country Park legal showdown

Several years on,  information on the landslides in Hastings Country Park and Rocklands Caravan Park in 2013/14 is still hard to obtain. Hastings Borough Council is appealing against a formal decision by the Information Commissioner’s Office that it should disclose a geotechnical report. What’s going on? Bernard McGinley reports on the latest legal turns.

Some time ago a former Hastings resident now living in Yorkshire made a Freedom of Information (FOI) request to Hastings Borough Council (HBC) for the geotechnical report known as ’Coffey 2’ on the landslides at Rocklands Caravan Park and the Country Park.

Although a previous survey, Coffey 1, had been made public and the Council, at the time under the leadership of Jeremy Birch, expressed its willingness to provide Coffey 2, when the report became available the request was refused.

The requester appealed to the Information Commissioner’s Office (ICO), which in March decided that Coffey 2 should be disclosed.  (The Decision Notice has been published, reference FS50650700.)  This was after the Information Commissioner had decided that the FOI Act was not the proper forum for the request and that it should be treated under the Environmental Information Regulations 2004 (EIR). Most local authorities would have got on with it — but not HBC, who decided to appeal.

HBC vs ICO

The hearing will pit HBC officers against ICO representatives, with a number of witnesses also contributing. (The original requester has withdrawn from the case.)  The appeal is being heard by the First-Tier Tribunal in Edward Street, Brighton, on 22, 23 and 24 November. Some of the sessions will be closed, where the Tribunal addresses the confidential – including financial – submissions by Rocklands, but the structure has not yet been decided.  

Rocklands have argued that disclosure of the geotechnical information would affect their business adversely. They also say that some of the geotechnical information used by Coffey came from their own consultant specialists, and therefore remains their confidential property. This could be disputed.

The ICO are expected to try to show that in information law the Council are obliged to disclose the document, as every part of EIR has a presumption in favour of disclosure — that is, to disclose unless there are good reasons not to. Both sides will have their stated view of what is reasonable.

Also of interest is the administrative history of Coffey 2, and the Council’s various statements on the report and its apparent willingness in the first instance to publish it.

Vexatious request?

HBC assert a number of reasons in law why the request should be refused. One is that the request is vexatious and manifestly unreasonable. This will be news to the many hundreds of people who have been upset by the happenings at Rocklands and thereabouts in the past five or so years. There is a widespread view that the systematic removal of trees and unauthorised developments on the lower slopes could have affected the drainage of the caravan park and the adjoining Country Park, where a key right of way over the landslide area has remained closed for safety reasons since 2014.

HOT has covered aspects of this history many times, such as here, here and here.  (The two landslides happened at around the same time as the notorious Bunker building appeared in Rocklands, given permission under delegated powers and then built in flagrant excess of the permission. The two issues intensified one another.)

HBC commissioned the geotechnical engineers Coffey to investigate the landslides. Their published report became known as Coffey 1. There were other Council investigations including the Procedural Review (‘Bahcheli Report’),  the RH Environmental Audit, and the HBC Cabinet report of December 2014.

Once published, concerns were expressed that Coffey 1’s investigations were too limited.  Eventually Coffey 2 was commissioned.

Among other grounds cited by the Council for refusing disclosure of the later report are that the document contains commercially confidential information and that disclosure would jeopardise Rocklands’ economic interests.

Public interest test

The criteria for a decision include a public interest test — which is not what the public is interested in, but what is in the public good. Often there can be a trade-off between transparency and effectiveness: the particular circumstances of any case are crucial. Arguments need to be weighed for and against. Is there a legitimate public interest in knowing the causes and costs of the landslips, or should the Council be left to consider the best options, uncomplained at by those who strongly preferred the Country Park – and Rocklands – as it was?  As it was hands-off management that got us into the present situation, many people feel that disclosure is the better outcome.  Council officers see it differently.

The cost of HBC’s barrister will be high, on top of thousands of pounds already incurred in other legal expenses and officer time.  The do-the-right-thing justification for this somehow has never been extended to the Area of Outstanding Beauty (AONB), Site of Special Scientific Interest (SSSI) and Scheduled Ancient Monument (SAM), all in the same area, not to mention the right of way that HBC is charged with protecting.  

The Tribunal’s decision may be given on the day the hearing concludes, but is more likely to be in December.

Even if the Council’s appeal fails and the decision for disclosure is upheld, it may not clarify much. Much of Coffey 2 is known already, and it is a short document.

Will the people of Hastings ever get their old Country Park back?   What are the options and what the expense?  There are many other questions.

A Coffey 3 is unlikely — at least by Coffey. However the Council’s own Procedural Review Addendum (the supplement to the Bahcheli Report) was clear about the way ahead, and says in its last paragraph:

The Council and/or the landowner need to undertake further geotechnical surveys to establish the stability of the land and what mitigation, if any, is appropriate before determining the best course of action for the land.

At present there is no sign of such surveys taking place, or of the public right of way being restored.

• Note:  The contributor had been asked to represent the complainant at the appeal hearing — that would have made him proxy Second Respondent, the First Respondent being the ICO itself.  But as the complainant has since withdrawn from the case, the contributor no longer has a Respondent to represent, or any involvement in the case.

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