An appeal that affects St Marys Lands has been decided on 29th October 2026.
The report is in the National Archives
LINDA BROMLEY v THE INFORMATION COMMISSIONER – Find Case Law – The National Archives
The document is also attached to this web site here https://www.friendsofstmaryslands.com/wp-content/uploads/2026/11/Appeal-decision-28.10.26.pdf
The important parts of the very long document are as follows: –
Point 24.
The Appellant criticises the Council’s reliance upon the knowledge of one officer in the Green Spaces Team. During the Commissioner’s investigation, the Council said that it had not carried out searches and that the relevant officer knew what information was held; and ‘there was no need to look as we didn’t have that information to hand’ (see paragraph 33 of the decision notice). The Appellant submits that information not being immediately to hand is not the same as information not being held elsewhere within the Council.
Point 28
The lease provides that ownership and possession of land outside the demised premises remained with the Council and that some uses required the Council’s 7 consent. It also reserved rights to the Council, particularly outside race days. The Appellant submits that the land on which the bird-protection fencing was erected was not part of the demised premises and that the racecourse’s rights over the land did not remove the Council’s responsibility for it.
Point 31
The Appellant submits that these documents contradict the Council’s account that the fencing was installed and managed independently by the racecourse on leased land. They show that the Council authorised and funded the scheme, approved a plan depicting the protected area and commissioned ecological monitoring of it.
Point 33
The Appellant also relies upon section 6(3) of the 1984 Act. That provision requires the Council to ensure that, except on race days, not less than 25 hectares of St Mary’s Lands remain outside the exercise of specified statutory powers. She submits that the 8 Council should maintain accurate records sufficient to demonstrate compliance with that duty.
Point 34
Her case is therefore not simply that the Council ought to create new information. It is that the Council’s documents undermine the explanation accepted by the Commissioner and make it likely either that the requested information was held or that further searches would locate it. She seeks a fresh response to parts 7 and 8 and, if necessary, further evidence from or the joinder of the Council.
Point 45
The lease does not appear to support the broad proposition that the relevant land was simply demised to and controlled by the racecourse, with no significant continuing role for the Council. The evidence is difficult to reconcile with the Council’s explanation that it was not responsible for determining where temporary fencing was positioned and had no operational or legal reason to record its location. The Council was making decisions about whether the scheme should continue, the area which it was intended to protect, its funding and its subsequent evaluation. The surveys involved walking the fenced boundaries and adjacent land and plotting bird territories by reference to the enclosure. The invoice does not itself establish the acreage enclosed, but it is evidence that the Council was directly involved in procuring and funding the fencing.
Point 51
The Commissioner accepted in his response that, if the Tribunal concluded that the decision notice was wrong, the appropriate remedy would be to require the Council to issue a fresh response. That is the course we consider appropriate.
Conclusion
52. In our view the Council has not demonstrated, on the balance of probabilities, that it does not hold recorded information falling within the scope of Parts 7 and 8 of the request. Its original enquiries were insufficient, and its reason for not carrying out searches was based upon a materially incomplete account of its ownership and control of the land and involvement in the fencing scheme. 53. The appeal is therefore allowed and the Tribunal substitutes the decision notice as set out at the beginning of this decision.
Stephen Cragg KC
Judge of the First-tier Tribunal
Date: 28 October 2026.
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