The First-tier Tribunal (General Regulatory Chamber) has handed down its decision in Merthyr Tydfil County Borough Council v Information Commissioner and Chris Austin [2026] UKFTT 01091 (GRC), an appeal under the Environmental Information Regulations 2004 (“EIR”) concerning the funding of restoration works at the Ffos-y-fran opencast coal mine.
In 2015, the developer entered an agreement with Merthyr Tydfil County Borough Council to put into escrow a sum of £15 million to secure restoration of the site at the conclusion of mining. In 2024, after mining had ceased and the developer claimed to lack sufficient funds to deliver the approved restoration scheme, the Council agreed to vary the escrow agreement to allow the developer to draw down funds to deliver an alternative, unapproved, “interim” restoration scheme.
Chris Austin, a local resident and campaigner concerned about the failure of the developer to deliver the approved scheme as required by the extant planning permission, requested both versions of the escrow agreement under the EIR. The Council refused, relying on the exception for commercial confidentiality in regulation 12(5)(e) EIR. The Information Commissioner ordered disclosure, and the Council appealed.
In the course of the proceedings, and under cross-examination, the Council conceded that its initial position was untenable. It disclosed the 2015 escrow agreement and almost all of the 2024 variation, leaving in dispute only a schedule of detailed costings.
The Tribunal went further than the Commissioner — finding that regulation 12(5)(e) was not engaged at all. Nothing in the agreements or the surrounding circumstances imposed an obligation of confidence, and neither the Council nor the operator had adduced evidence that disclosure would harm any legitimate economic interest. The submission that disclosure would deter future public/private partnerships attracted little weight: such arrangements are routinely made against the backdrop of statutory disclosure obligations, and a developer operating on this scale “would – or ought to – have been aware of the Council’s legal duties under EIR”. Even had the exception been engaged, the public interest “overwhelmingly” favoured disclosure: the operator had taken the profits of a decade of opencast mining permitted for the very purpose of funding restoration, while those obligations remained largely in default. The Council was ordered to disclose the entirety of the withheld material, subject only to redaction of personal data.
The decision is a strong affirmation of the presumption in favour of disclosure under the EIR. Public authorities and their commercial counterparties cannot resist disclosure by bare assertions of confidentiality or commercial sensitivity.
Toby Fisher and Peter Lockley acted for Mr Austin, instructed by Richard Buxton Solicitors.