Wayne Michaels v Information Commissioner

The Tribunal wishes to make clear at the outset that it accepts the Appellant’s concerns as genuine, sincerely and properly held while carefully and competently articulated. The issues raised - relating to alleged large-scale land raising, altered drainage patterns and flood risk together with significant pollution and health hazards—plainly engage matters of significant environmental and public interest within the scope and purpose of the Environmental Information Regulations 2004 (“the EIR”).

The Tribunal equally recognises that transparency in environmental decision-making is an important safeguard, capable of promoting accountability and public confidence. These considerations carried substantial weight in the Tribunal’s assessment of the competing public interests in both appeals.

However, the Tribunal emphasises that the EIR regime does not mandate disclosure at any cost or at any time. The Regulations expressly permit information to be withheld where disclosure would undermine the effective functioning of regulatory and enforcement processes, provided that the statutory tests are met and the public interest balance is properly and carefully undertaken.

In essence, the Tribunal is asked to determine whether the Commissioner lawfully upheld the Council’s refusal to disclose environmental information relating to a large-scale planning enforcement investigation, in circumstances involving alleged ongoing flooding, land alteration and potential contamination, and whether the strong statutory presumption in favour of disclosure was displaced on a lawful and evidence-based basis.

In appeal FT/EA/2025/0458, the Tribunal is satisfied, applying the civil standard of proof, that the Council did not hold any further survey material beyond that already disclosed. We have carefully studied the closed material in our possession which confirms that the commissioned land survey consisted of a single drawing and did not generate additional reports, analysis or underlying datasets.

The Commissioner was entitled to accept the Council’s explanation as to what information was held, and the Tribunal is satisfied and finds that even despite the absence of any material evidence to the contrary, there is no evidential basis for concluding that further survey information existed but was withheld.

The Tribunal agrees that regulation 12(4)(e) was engaged in respect of internal communications between officers and elected members. The closed material consists almost exclusively of communications concerned with evaluating allegations of breach, assessing compliance with planning permissions, and determining the appropriate regulatory response.

The Tribunal considers that, during an active enforcement investigation, there is a strong and legitimate public interest in maintaining a protected space for internal deliberation. Effective enforcement depends upon the ability of public authorities to assess evidence, debate options and test conclusions candidly and rigorously before formal decisions are taken.

The Tribunal is satisfied that disclosure of such material at that stage would have risked inhibiting frank internal discussion and distorting the enforcement process. The Commissioner was therefore entitled to conclude that the public interest in maintaining this exception outweighed the public interest in disclosure.

In both appeals, the Tribunal is satisfied that regulation 12(5)(d) was engaged. The withheld information related directly to a live planning enforcement process, including consideration of whether a breach had occurred and what statutory enforcement action, if any, should be pursued.

The Tribunal accepts that such enforcement activity constitutes “proceedings” within the meaning of regulation 12(5)(d), and that confidentiality is provided by law, arising from the statutory framework governing planning enforcement and well-established public law principles protecting investigatory and decisional integrity.

The Tribunal is satisfied that disclosure at the time of the requests would have been likely to prejudice those proceedings by revealing evaluative reasoning, tentative assessments, and enforcement strategy before the local authority had reached a settled and legally robust position. (see also §§ 58 & 59 below).

The Tribunal has carefully weighed the competing public interests. On one side lies a strong public interest in transparency, particularly where environmental harm is alleged, and community concern is acute. On the other lies the more compelling public interest in ensuring that planning enforcement authorities are able to carry out their statutory functions effectively, lawfully and without premature interference.

The Tribunal considers that premature disclosure of enforcement-sensitive material would have carried a real risk of frustrating or distorting the enforcement process. Such an outcome would not serve the public interest in environmental protection but would instead undermine the capacity of regulators to address alleged breaches properly and decisively.

In those circumstances, the Tribunal is satisfied that the public interest in maintaining confidentiality decisively and conclusively outweighed the public interest in disclosure at the relevant time. The presumption in favour of disclosure in regulation 12(2) does not materially alter that conclusion.

The Tribunal has examined the closed material with care. Having done so, it is satisfied that the Commissioner’s conclusions were not only justified on the balance of probabilities but were strongly supported by the underlying evidence.

Nothing in the closed material suggests that the Council approached the matter casually, defensively or without due regard to the seriousness of the environmental concerns raised. On the contrary, it demonstrates a careful and structured approach to evidence-gathering, evaluation and decision-making.

The Tribunal is satisfied that the Commissioner was well within the proper exercise of his discretion in upholding the Council’s reliance on regulations 12(4)(e) and 12(5)(d). The decisions under appeal are supported on the balance of probabilities and, in substance in our unanimous opinion would meet a higher evidential threshold.

The Tribunal has not taken account of subsequent developments, including the service and later withdrawal of the Enforcement Notice or the submission of a retrospective planning application. The correct temporal focus for assessing the lawfulness of the refusals is the date of the internal review responses, and later events cannot retrospectively invalidate decisions that were lawful when taken.

These are appeals under regulation 18 of the Environmental Information Regulations 2004 against two Decision Notices issued by the Information Commissioner in relation to information requested from Bracknell Forest Borough Council concerning a planning enforcement investigation.

The Tribunal’s role is supervisory. It is not concerned with the merits of the underlying planning dispute, nor with whether disclosure would be desirable, but whether the Commissioner erred in law or reached conclusions not reasonably open to him.

In relation to regulation 12(4)(e), it was not disputed that the information comprised internal communications. The Tribunal is satisfied that the Commissioner lawfully identified and weighed the relevant public interest factors, including the existence of a live enforcement investigation and the timing of the requests. Enforcement requires a high degree of confidentiality. No error of law is disclosed in the Commissioner’s conclusion that the public interest favoured maintaining the exception.

In relation to regulation 12(5)(d), the Tribunal is satisfied that the Commissioner was entitled to treat the planning enforcement investigation as “proceedings” for the purposes of the Regulation, to conclude that confidentiality was provided by law during the investigative stage, and to find that disclosure would more probably than not adversely affect that confidentiality. The Appellant’s arguments amount to disagreement with that evaluative judgment rather than demonstration of legal error.

In respect of the alleged non-existence of further survey information (FT/EA/2025/0458), the Tribunal finds that the Commissioner applied the correct test and was entitled, on the balance of probabilities, to accept the Council’s evidence as to the information held. Although the appellant advances a cogent narrative as to why one might expect further survey or analytical material to exist, that narrative rests on inference rather than evidence. The Commissioner has in our unanimous opinion correctly directed himself to the balance-of-probabilities test, considered the searches undertaken, and was entitled to accept the public authority’s explanation that no further material was held at the relevant times. The Tribunal’s role is supervisory, and it is not satisfied that the Commissioner’s conclusion was one not reasonably open to him. The Tribunal accepted that reasonable minds may differ, but that the Commissioner’s position was legally available.

The Tribunal is further satisfied that the Commissioner properly directed himself to the presumption in favour of disclosure under regulation 12(2) and applied it as part of the overall balancing exercise. There is no error of law here either.

Matters arising after the issuance of the Decision Notices do not retrospectively render those decisions unlawful.

For all the above reasons, both appeals are dismissed.