To what extent can information supplied by a developer to a planning authority for the purpose of obtaining pre – application advice be confidential and immune from “freedom of information” requests under Freedom of Information Act 2000 (“FOIA”) or Environmental Information Regulations, 2004 (“EIR”)?
If genuinely commercial information were to freely available, developers would think twice about the useful step of seeking pre – application advice.
There may well be cases, where the pre -application process involves the provision of commercially sensitive material which needs protecting, even after the actual application has been made.
In a case involving environmental information within regulation 2 of EIR, EIR 12(5) sets out the exceptions to the duty imposed on public authorities to provide environmental information:
“a public authority may refuse to disclose information to the extent that its disclosure would adversely affect:-
(e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;
(f) the interests of the person who provided the information” [to the public authority] where that person was not obliged to supply it to any public authority, where the authority was not entitled to disclose it other than under the EIR and where the person does not consent to disclosure.
In other cases it may be that a request has been made after application when the time for confidentiality no longer applies.
To keep information from disclosure, it is not enough to quote some mythical general rule that “all information passing between a developer and a planning authority in pre – application stages is inherently confidential and that its disclosure would, without more, threaten economic interests”, as the following case illustrates.
In the First Tier Tribunal Case of St. Albans City and District Council v The Information Commissioner (“the ICO”)  Oaklands College and Taylor Wimpey, (“the developers”) had, early in 2012, applied to St.Albans City and District Council (“SACDC”) for paid for pre-application advice for their intended planning application for a large housing estate on green belt land, plus the redevelopment of Smallford College. That redevelopment was to be partly funded by the residential development.
Marshalswick North Residents Association (“MNRA”) strongly opposed the plans for development.
MNRA requested SACDC to email them copies of all minutes/notes of meetings, formal or informal and correspondence between Taylor Wimpey and SADC’s planning department, regarding proposals to build 350 homes on Oaklands College land on Sandpit Lane.
SACDC refused to supply the information. Its refusal was based on EIR 12(5)(e)’s exception where disclosure would have an adverse effect on commercial confidentiality, and on EIR 12(5)(f).
SACDC felt threatened with the loss of future fee revenue from pre – application services if the material withheld here had to be disclosed.
In this case the Tribunal found that both of the conditions in EIR 12(5)(e) and (f) might be satisfied and that if they were the only live issue would be whether there was the “adverse effect” referred to in EIR’s preamble to those subclauses.
There was no general rule that all pre – application information supplied by a developer to a planning authority benefited from those exceptions.
Nor was it likely that the exceptions would apply to all the material covered by a request.
The ICO and the Tribunal here had to examine the specific information withheld in the relevant case and decide whether the exceptions applied to it.
The sensitivity of material disclosed pre – application by a developer to a planning authority would vary considerably from one application to another.
Here SACDC had indiscriminately withheld whatever had been created pre – application (and even a few documents which post – dated it) without any attempt to identify to the Tribunal any particular information in specific documents, within the mass withheld, whose disclosure would by June 2013 have damaged the interests of either the developers or of SACDC.
Indeed the Tribunal was unable to find anything which had been expressly required to be kept confidential or which, by June 2013 at any rate, appeared too sensitive to disclose. Indeed much of the information was already public.
As neither of the exceptions provided by EIR 12(5)(e) or (f) had been properly engaged by establishing to the Tribunal’s satisfaction the sensitivity of the specific documents withheld, SACDC’s attempt to avoid their disclosure under those exceptions fell at the first hurdle.
This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.