Open market information is still secret says Council. Really?

A Freedom of Information (FoI) request has again been refused by Hastings Borough Council because Open Market Valuations are – somehow – commercially confidential. The request concerns financial adjustment for affordable housing after more flats were added to the Archery Ground. Policy and guidance are consistent and clear that these viability assessments (as they are known) are to be made public. Bernard McGinley applies the ‘reasonable person test’ and reports on the latest Orwellian ‘Ignorance-is-Strength’ administrative nonsense.

In late March 2025 HOT reported on an FoI request and the Council’s view that open market information was commercially confidential. An appeal asked them to reconsider. They responded:

The information you are requesting is held by Hastings Borough Council and was provided to us by a third party in confidence.

The information was given to Hastings Borough Council and specifically said ‘Given the commercial sensitivity of the information I would be grateful for these to be kept confidential’.

Hastings Borough Council has a duty of trust and by releasing the information would break that trust and relationship.

None of this addressed matters in the first request or appeal letter, such as how can open market information be commercially sensitive? How can it damage trust? What of the other third parties? What of the guidance not mentioning confidentiality, but publication?

Viability assessments necessarily include evaluations. The HBC response ignored a reference to the government’s National Planning Policy Framework (NPPF) (para 59) stating that ‘All viability assessments . . . should be publicly available’. Such viability reports – uncensored – are plentiful in the casefiles. What was requested was much less than that: estimates of Open Market Value (OMV), of the kind that fill estate agents’ windows across Hastings and St Leonards.

Policy H3

HBC’s Policy H3, Provision of Affordable Housing, is key:

2.1   Policy H3 of the adopted Hastings Planning Strategy requires developers to provide either on-site affordable homes or a financial contribution in lieu of such homes.

3.3   The developer/applicant is required to:

Obtain estimated open market value (OMV) figures of the proposed property/properties from 3 separate local Estate Agents and submit this to the Council.

5.4   . . . all financial viability appraisals must include the following information: . . .

• The applicants assessment of values/rents plus supporting evidence for both private, affordable housing and commercial elements of the development;

• Build cost details including breakdown of any abnormal costs, including contamination etc. along with infrastructure costs and supporting evidence of these costs.

A formula shows how financial contributions are arrived at, based on estimated Open Market Value. However the entire policy document says nothing about confidentiality, or commercial sensitivity.

The committee report for the case, HS/FA/24/00549, said:

Based on three estate agent valuations for the additional five units, using the formula . . . the financial contribution required would be £96,667.5.

The casefile however does not have those three valuations, though even people who are not property professionals would have a sense of what the units were worth. There is no commercial sensitivity: open market valuations are open. Open market information does not damage trust: it’s in the name. The operation of Policy H3 was shown in (e.g.) planning case HS/FA/20/00970. Changes led to recalculations. Three different firms’ viability documents made about 2,000 financial statements. All were published in full.

Oddly, the FoI request was responded to under the Environmental Information Regulations and not the FoI Act. HBC wrote carelessly:

Under Environmental Information Regulations the information requested above exempt [sic] under Section 12(5)(e) ‘Confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest’.

Unfortunately this is contradicted by the Information Commissioner’s Office as well as the NPPF. The request is not about trade secrets, or costings. No intellectual property rights are involved. This is about Open Market Value. Refusal of the request is allowable if disclosure

would adversely affect the confidentiality of commercial or industrial information.

Formal considerations are:

Is the information commercial or industrial?

Is the information subject to confidentiality provided by law?

Is the confidentiality protecting a legitimate economic interest?

Would disclosure adversely affect the confidentiality?

HBC say they have considered these matters but not explained how. Under the ICO’s ‘reasonable person test’, Question 1 gets a vague Yes. The others get a clear No, No and No. It follows that Section 12(5)(e) is not engaged. There is no confidentiality or economic interest. (Even if there had been, it refers to estimates in 2024, not now.)

A requirement, not a remote option

HBC’s second response was diversionary, invoking a selective ‘duty of trust’ and quoting ‘the third party’, who had replied (unclearly):

. . . disclosure of the information would be likely to prejudice the commercial interests of the applicant company.

Our experience is that generally matters of development finance are submitted in the planning sphere on a confidential basis due to the competitive disadvantage that commercial development companies would be likely to be placed at if such information were to fall into the hands of competitors. In the case of Archery Road, such information being released well before the properties in question are placed on the open market would be likely to result in similar risks, for example, allowing competitors to seek to adjust their pricing with privileged advance knowledge of potential future pricing on this development.

We understand from our client that the external funder was also made aware of the valuations and fed this information into their decision making on the basis of retaining confidentiality on the sales values at the pre-marketing stage. Therefore, if the information were to enter the public domain this would risk a breach of such terms with potential contractual and financial implications for the applicant.

The ‘such information’ is OMV, as required by Policy H3 — and competitors have it too. There is no ‘privileged advance knowledge’, or ‘prejudice’. The ‘risks’ and ‘privileged knowledge’ are imaginary. Additionally, these HBC concerns arose only after the request for FoI review. The Council did not mention them in replying to the first FoI request. An estate agent cannot declare information ‘confidential’ as a trump card, and that is not a basis for refusing release: it carries no weight. The estate agent’s assertion ‘on the basis of not being publicly disclosed’ is not tenable.

Council policy and national guidance from the NPPF and the ICO are unanimous that such assessments should be published. What can be confidential about three Open Market opinions on five unbuilt flats? The casefile however does not have those three valuations. In its first refusal of 28 March, the handwringing statement is made:

Hastings Borough Council must show a degree of trust and confidence that the information given to us would damage that trust if released.

But that is not what the guidance or the policy says. The published information is a requirement, as it is for other viability reports. The HBC refusal gives a false presentation of the situation. National policy is unambiguous that assessments be made public. As for any estate agent, competitors will already know the Open Market Valuations in question. (Fuller viability statements have much more detail.)

Why the Council is being so protective can only be guessed at. HBC has ‘previous’, and plenty of it. The ICO has found against HBC before over FoI — as when the Council was ordered to disclose the Town Deal projects. There was FoI evasion regarding Rocklands. Part of ICO case FER0852865 in 2020 reads: ‘the Commissioner has concluded that regulation 12(5)(e) is not engaged’.

Is the price right?

It remains unknown and unshown whether £96,667.50 is the correct amount of compensation for the extra flats at the Archery Ground. The HBC Housing Development Manager’s estimated contribution (‘EXAMPLE ONLY’) was:

Financial contribution required for 1.25 units is £150,000

We require 3 x Estate Agent quotes to establish the open market value of the units.

Others require them too. Even if one estimate were supposedly ‘confidential’, what of the other two estate agents? Government guidance (emphasis added) says:

Any viability assessment should follow the government’s recommended approach to assessing viability as set out in this National Planning Guidance and be proportionate, simple, transparent and publicly available.

This perverse and secretive decision of a dysfunctional council makes no sense in law or administratively, and will be appealed against to the Information Commissioner. Despite all clarity, in Mugsborough there is no accountability worth the name (and no planning department either). The reputation of parts of HBC for incompetence, indifference and worse continues to grow.

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