First-Tier Tribunal orders council to disclose planning pre-application advice given to developer

The London Borough of Richmond Upon Thames must disclose parts of its planning pre-application advice, a tribunal has ruled.

Tribunal Judge Melanie Carter said in the First-tier Tribunal General Regulatory Chamber (Information Rights) that applicant Mark Jopling could receive information that concerned the Udney Park Playing Fields Trust.

The Information Commissioner had held that Richmond was entitled to rely on regulation 12 (5)(f) of the Environmental Information Regulations to refuse disclosure of the information requested.

This allows the public authority to refuse to disclose information in situations where it would adversely affect the interests of a person who has voluntarily provided the requested information when under no legal obligation to supply it.

On behalf of the trust, Jopling asked for: “All correspondence relating to the pre-application advice for any proposals for any work that requires planning permission at Udney Park” including advice from council planners given to a third party which wished to develop the land in question.

Tribunal members noted Richmond’s website stated: “Formal pre-application service - This service is chargeable and provides informal officer advice on a specific scheme. The fee is dependent on the type of advice you would like and the size of the development.”

They said that despite the reference to ‘formal’ on the webpage, the following sentence referred to ‘informal officer advice’.

The FTT said: “This reflected that this was not, in the Tribunal’s view, part of any formal process or put differently it lacked formality.”

The process was voluntary and “there were no decision making powers being exercised in the provision of pre-application advice, statutory or otherwise”.

The Tribunal added: “This was more of an administrative process than proceedings as such.”

This meant Richmond could not rely on the exception at regulation 12(5)(d) - a public authority may refuse to disclose information to the extent that its disclosure would adversely affect… the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law - in refusing to disclose the disputed information.

Richmond continued to rely on the fact that the disputed information was confidential and the applicant had not consented to its disclosure.

It argued that premature disclosure would give insights to competitors about the pre-applicant’s views and market projections and the scale of investment required.

In its ruling, the Tribunal said this was not supported by any evidence or a degree of specificity as to the nature of the competition or how particular parts of the disputed information, if disclosed, could give rise to harm and what that harm would be.

The Tribunal said it “paid close attention to the disputed information in order to seek to discern for itself whether any of this was apparent on the face of the information. In its view it was not. Its reasoning that it is not satisfied, from anything in the contents of the disputed information, that disclosure would adversely affect any confidentiality of a legitimate economic interest”.

Other tribunal members were Dave Sivers and Susan Wolf.

Mark Smulian