Council found in contempt and ordered to pay £35,000 costs over Environmental Information Regulations failings

Mrs Justice Heather Williams decided the appropriate penalty was publication of her decision and a costs award of £35,000 to local resident Penny Bence.

The judge found Cornwall had “a poor attitude towards compliance” and had been “illogical and irrational” in failing to search on the word ‘bollard’ when seeking material relevant to Ms Bence’s application.

Parts of Cornwall’s response had been “cavalier, irresponsible and unreasonable”.

Ms Bence had objected to the council erecting four bollards which she said cut off vehicle access to her property in Chynance, and requested various disclosures under freedom of information legislation.

The council missed deadlines and when she pursued Cornwall for contempt, the FTT transferred this case to the Upper Tribunal under section 61(4) Freedom of Information Act 2000 stating Cornwall’s offence was non-compliance with a substituted decision notice and with an FTT order.

During the hearing before the Upper Tribunal, Cornwall admitted contempt in not complying with the notice within the prescribed 35-day period, and the tribunal additionally found Cornwall in breach of paragraph 2(a) of the notice until 23 July 2025, which amounted to a further contempt.

Ms Bence had originally applied for “…all communications, including attachments, between Highways & Legal [departments], relating to the Chynance bollards and rights of way for [relevant] Chynance properties”.

Cornwall withheld information under regulation 12(5)(b) EIR, which concerns an adverse effect on the course of justice, and the Information Commissioner upheld this.

After a complex series of disputes over different parts of Ms Bence’s application, the matter reached the FTT, which found Cornwall had failed to respond at all to parts of Ms Bence’s requests and was in breach of its EIR obligations.

The council argued it was entitled to withhold information in the documents that the FTT had determined were not covered by regulation 12(5)(b) EIR, on the basis of regulations concerning personal data.

This led to the contempt proceedings during which it emerged the council had searched for documents on the words ’compliant’ - a typographical error for ’complaint’ - and Chynance, which between them led to so many documents that Cornwall claimed it would be unreasonable to trawl through all of them, given the significant cost involved

Ms Bence contended Cornwall used inappropriately broad search terms, most notably in not narrowing the scope by searching on ‘bollard', so that a lot of irrelevant emails had been identified which the council said justified withholding information on costs grounds.

Heather Williams J said: “Ms Bence’s request for information was made as long ago as 10 February 2023.

“Even on the council’s own case, it only managed to comply with the first part of her request on 23 July 2025 and the second part of her request on 10 March 2025. This delay is all the more striking when set against the timescales for compliance prescribed by the EIR…on any view, there was very protracted delay in this case.”

She said the FTT’s substituted decision notice had been overlooked rather than intentionally ignored because Cornwall supplied an email address that was not monitored regularly, and this was “indicative of a poor attitude towards compliance”.

This could have been mitigated by prompt action but “instead and quite remarkably, the council somehow managed to overlook two of the four requirements in paragraph 2(b) of the [notice] and paragraph 2(a)…in its entirety (and in circumstances where it had been put on notice of the latter as early as the 31 May 2024 decision),” Heather Williams J said.

“No sensible explanation for this has been provided at any stage by [Cornwall]. At the least, it indicates that the council was cavalier, irresponsible and unreasonable in the way it addressed the [notice] in its 23 December 2024 communication.”

She said there had been “a dismal litany of failings” on Cornwall’s part.

The judge concluded: “Although I have not found all of the allegations proven, those that have been established are substantial and they reflect poorly on the council.”

She added that the failings were “avoidable and should not have happened. The council has been too ready to try and place the blame on others, in particular in making the unfounded allegations against Ms Bence that were included, on instructions, in [the] skeleton argument.”

Mark Smulian