Legal Case throws Pre-application Confidentiality into Question

Seeking pre-application advice is common in planning, but a claim by a campaigner has shown that developers should not assume correspondence will be kept private…

It’s not unusual – in fact it is par for the course – that developers seek informal advice from the local planning authority before submitting planning applications.

This can save time, money and effort by highlighting any potential problems early, helping the applicant to address any issues and alter plans to increase the likelihood of gaining planning permission.

Paul Smith at Apex Planning Consultants comments: “For many years, like so many fellow town planners, I had operated on the belief that where a landowner or developer seeks pre-application or informal advice from a council that the request and subsequent response or advice would be treated as confidential, meaning it would not be disclosed to the general public.”

However, a recent legal case has thrown this into doubt.

The case concerns the London Borough of Richmond Upon Thames, which had refused to provide the requested information to a local campaigner.

The authority did so, on the basis of three exceptions within the Environmental Information Regulations 2004 (EIR).

However, when the campaigner made a complaint to the Information Commissioner, and then appealed to a First-Tier Tribunal, the council was ordered to disclose the information:

1. The first exception that was upheld by the Information Commissioner was that the disclosure would adversely affect the interests of the person who provided the information – the developer. However, while the tribunal accepted that the developer had not consented to disclosure of its correspondence or the advice, it rejected any claim that its disclosure would have an adverse impact.
2. The second exception was that disclosure would adversely affect the confidentiality of the proceedings of the council. However, the tribunal decided that pre-application advice did not actually form part of the ‘proceedings’ as no application had yet been submitted.
3. The third exception was that disclosure would adversely affect the confidentiality of commercial or industrial information. Although the planning authority claimed that any disclosure could give competitors insight into the developer’s business, this was rejected by the tribunal as there was no evidence to show this was the case.

The fact that the council was ordered to disclose the information will be surprising to many, especially as the Information Commissioner has previously upheld decisions of this kind.

Paul Smith adds: “I have known cases where such pre-application advice has been disclosed by a council, however, this case appears to suggest there are no good grounds to prevent any pre-application advice being withheld when duly requested under the freedom of information act.

“Whether this truly has negative implications for landowners and developers perhaps needs some hard thinking. However, it clearly demonstrates that they should not simply presume their request for pre-application advice and the council response will be kept private.”

You can read the full judgement at CaseMine.

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