The Information Commissioner erred in law when upholding Stockton‑on‑Tees Borough Council’s refusal to disclose pre‑application planning documents relating to a housing development on confidentiality grounds, the First-tier Tribunal has ruled.
In Vassar v Information Commissioner (FT/EA/2025/0066), the Tribunal found that Stockton-on-Tees Borough Council had failed to demonstrate that disclosure of the documents relating to the Wynyard Village Extension development would adversely affect the confidentiality of its proceedings.
Catherine Vassar, a local resident, had sought disclosure under the Environmental Information Regulations 2004 (EIR) of a wide range of material relating to three planning applications connected to the major Wynyard Village Extension housing scheme.
The Council released some of information requested but withheld the remainder under Regulation 12(5)(d) of the Environmental Information Regulations 2004 (EIR), arguing that disclosure would adversely affect the confidentiality of its pre‑application proceedings. This position was endorsed by the Information Commissioner in a decision notice (IC‑316821‑C4W2), published in December 2024.
Vassar appealed, arguing that any confidentiality attached to pre‑application advice had long since diminished once the resulting planning decisions entered the public domain, particularly given her allegation that the development had been built at a higher density than the outline permission allowed.
While the Tribunal accepted that pre‑application processes can constitute “proceedings” for the purposes of Regulation 12(5)(d) and that they may initially attract confidentiality, it emphasised that the EIR set a high bar for demonstrating adverse effect.
In this case, it found that:
- none of the withheld documents was marked confidential;
- the material pre‑dated the information request by seven years and the planning permission by almost as long;
- no evidence had been provided that disclosure at this stage would deter applicants from engaging with pre‑application processes in future; and
- there is no blanket, perpetual confidentiality attached to pre‑application advice simply because it was once expected to be confidential.
The tribunal stressed that public authorities must show, “in each specific instance”, that disclosure would be more likely than not to harm the confidentiality of proceedings, following principles highlighted in a 2025 ICO decision involving Kent County Council.
According to the Tribunal, the Commissioner in the Kent case (https://ico.org.uk/action-weve-taken/decision-notices/2025/07/ic-350626-f5f6/ ) emphasised several key principles:
1. No blanket confidentiality for pre‑application discussions
The ICO held that even where pre‑application processes are confidential at the time, local authorities cannot treat them as permanently exempt.
They must consider confidentiality case by case, and only where specific, evidenced harm from disclosure can be demonstrated.
2. High threshold for “adverse effect”
The Kent decision reiterated that Regulation 12(5)(d) requires authorities to show that disclosure “would” (not “might”) harm the confidentiality of proceedings.
Speculative or generic assertions are insufficient.
3. Time sensitivity of confidentiality
Information that was once sensitive may no longer carry the same expectation of confidence once:
- applications have been decided publicly,
- circumstances have moved on, or
- the developer had reason to understand the authority is subject to EIR disclosure.
4. EIR presumption in favour of disclosure
The ICO stressed that EIR 12(2) creates a strong presumption for releasing environmental information, especially where it informs public‑facing decisions.
The Tribunal held that the confidentiality of pre‑application material is “time‑sensitive”, meaning it may diminish as circumstances evolve and public decisions are taken.
The Tribunal noted that the developers involved were major commercial operators who “ought to have been aware” that information supplied to a public authority may fall within scope of environmental information legislation.
It also pointed to the Commissioner’s own guidance, which states that public authorities cannot provide third parties with an absolute guarantee that information supplied will never be disclosed.
The FTT issued a substitute decision notice requiring the Council to release a previously withheld Closed Bundle of material - subject only to the redaction of personal data - within 35 working days and warned that failure to comply could lead to contempt proceedings.
