“Town council ordered to disclose contract with developer for sports complex sale” [for housing]

“The First-tier Tribunal has upheld a decision by the Information Commissioner’s Office that required a town council to disclose a contract entered into more than five years ago with a developer over the multi-million pound sale of a sports complex.

The case of Hemsworth Town Council v Information Commissioner & (Dismissed : Freedom of Information Act 2000) [2018] UKFTT 2017_0120 (GRC) involved conjoined appeals as the separate requests for information were materially identical.

The requests centred on the contract between Saul Construction, the developer, and Hemsworth Town Council in respect of the sale of the Hemsworth Sports Complex.

Entered into in early 2011, the development was to consist of more than 150 homes. It was agreed that the town council would take over a new community centre and new football facilities. That has happened.

Planning permission was sought for the site but was quashed by the High Court. Permission has been re-granted but is the subject of another judicial review.

Because of the hiatus caused by the judicial reviews, Saul Construction has refused to complete the contract. Title therefore remains with the council. The developer has paid £360,000 pursuant to a section 106 agreement and paid part of the contract price. Some £1.4m remains outstanding from the purchase price. The council and the developer are seeking to renegotiate the contract.

The requesters are local residents who have expressed concern about various environmental issues resulting from the sale and loss of open space.

The town council refused their request, arguing that the documents were exempt from disclosure under s. 43(2) of the Freedom of Information Act 2000, which covers commercial interests. This was upheld on review.
When the solicitors to one of the requesters cited the Environmental Information Regulations 2004 (“EIR”), the council relied on the exemption in regulation 12(5)(e) (legitimate economic interests). It did not however explain why.

On review, the council maintained its decision and argued that the public interest favoured withholding the requested information.

After receiving a complaint, the ICO concluded that the EIR, rather than FOIA, applied.

The ICO decided that the town council had failed to discharge the burden on it of establishing that regulation 12(5)(e) was engaged. “With regard to legitimate economic interests, under Tribunal caselaw it had to be shown that, on the balance of probabilities, adverse effects would accrue.” [Tribunal’s emphasis]

The authority had failed to identify any specific adverse effects arising from the disclosure of the disputed information (or parts of it), the ICO found. It concluded therefore that it did not need to apply the public interest test.

Hemsworth Town Council appealed, but this has now been rejected by the First-tier Tribunal.”