The First tier Tribunal has overturned an Information Commissioner’s decision and ordered the Department for Energy Security and Net Zero (DESNZ) to disclose key sections of the scope of work used to commission an update to national wind farm noise guidance, saying that the public interest test decisively favoured disclosure.
In Backwell v Information Commissioner [2026] UKFTT 216 (GRC), the Tribunal held that DESNZ wrongly relied on the “material in the course of completion” exception under regulation 12(4)(d) of the Environmental Information Regulations (EIR) to withhold the specification issued to Noise Consultants Ltd (NCL), which is leading the update of the long standing ETSU R 97 noise guidance, which has shaped planning decisions on wind turbine noise since 1996.
The Tribunal allowed the appeal and directed DESNZ to release pages A3CB to A9CB of the closed bundle, save for a timetable section which may be redacted. It also instructed the Information Commissioner to send the decision to DESNZ.
The appellant, Louis Backwell, had requested the scope of work issued during the competitive tender for updating ETSU R 97, arguing that the material “should be public now as it has serious implications to wind farms in the planning pipeline that could affect thousands of people”.
DESNZ refused disclosure, maintaining that the specification related to ongoing work by NCL and that releasing it “could prejudice the outcomes of the ETSU update”. The Information Commissioner upheld that position in a June 2025 decision notice.
The Tribunal agreed that the exception in regulation 12(4)(d) was technically engaged, finding that the specification “relates to material then in the course of completion namely the updated ETSU guidance”. However, it concluded that the public interest test decisively favoured disclosure.
The panel rejected DESNZ’s arguments that early release would undermine policy development, noting there was no evidence that disclosure would damage the integrity of the update process or lead to “less robust” guidance. It also questioned the Department’s concerns about lobbying, observing that EIR rights are motive blind and that stakeholder engagement may “inform the process and outcome positively”.
The Tribunal emphasised the significant public interest in transparency around wind turbine noise, which it described as a matter affecting “real world people” and potentially “thousands” of residents near proposed developments. It also highlighted the Aarhus Convention’s objective of enabling public participation in environmental decision making.
Criticism of DESNZ’s approach
The Tribunal gave little weight to DESNZ’s argument that disclosure should wait until the updated guidance was published, finding that such project management preferences did not outweigh the statutory presumption in favour of disclosure.
It also noted concerns about the Department’s characterisation of concerned residents as “a small but vocal group of anti onshore wind lobbyists”, observing that this risked appearing dismissive of legitimate public interest.
The appeal was allowed. DESNZ must now disclose the majority of the tender specification within 35 days, with only the “Timetable” section permitted to be withheld.
