Commercial confidentiality on registers EPA 1990 s. 78T
EPA 1990 s. 78T lets businesses exclude commercially confidential data from contaminated land registers. Exclusions last four years; appeals allow 21 days.
No information relating to the affairs of any individual or business shall be included in a register maintained under section 78R above, without the consent of that individual or the person for the time being carrying on that business, if and so long as the information— is, in relation to him, commercially confidential; and is not required to be included in the register in pursuance of directions under subsection (7) below; but information is not commercially confidential for the purposes of this section unless it is determined under this section to be so by the enforcing authority or, on appeal, by the Secretary of State. Where it appears to an enforcing authority that any information which has been obtained by the authority under or by virtue of any provision of this Part might be commercially confidential, the authority shall— give to the person to whom or whose business it relates notice that that information is required to be included in the register unless excluded under this section; and give him a reasonable opportunity— of objecting to the inclusion of the information on the ground that it is commercially confidential; and of making representations to the authority for the purpose of justifying any such objection; and, if any representations are made, the enforcing authority shall, having taken the representations into account, determine whether the information is or is not commercially confidential. Where, under subsection (2) above, an authority determines that information is not commercially confidential— the information shall not be entered in the register until the end of the period of twenty-one days beginning with the date on which the determination is notified to the person concerned; that person may appeal to the Secretary of State against the decision; and, where an appeal is brought in respect of any information, the information shall not be entered in the register until the end of the period of seven days following the day on which the appeal is finally determined or withdrawn. An appeal under subsection (3) above shall, if either party to the appeal so requests or the Secretary of State so decides, take or continue in the form of a hearing (which must be held in private). Subsection (10) of section 15 above shall apply in relation to an appeal under subsection (3) above as it applies in relation to an appeal under that section. Subsection (3) above is subject to section 114 of the Environment Act 1995 (delegation or reference of appeals etc ). The Secretary of State may give to the enforcing authorities directions as to specified information, or descriptions of information, which the public interest requires to be included in registers maintained under section 78R above notwithstanding that the information may be commercially confidential. Information excluded from a register shall be treated as ceasing to be commercially confidential for the purposes of this section at the expiry of the period of four years beginning with the date of the determination by virtue of which it was excluded; but the person who furnished it may apply to the authority for the information to remain excluded from the register on the ground that it is still commercially confidential and the authority shall determine whether or not that is the case. Subsections (3) to (6) above shall apply in relation to a determination under subsection (8) above as they apply in relation to a determination under subsection (2) above. Information is, for the purposes of any determination under this section, commercially confidential, in relation to any individual or person, if its being contained in the register would prejudice to an unreasonable degree the commercial interests of that individual or person. For the purposes of subsection (10) above, there shall be disregarded any prejudice to the commercial interests of any individual or person so far as relating only to the value of the contaminated land in question or otherwise to the ownership or occupation of that land.
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
Enforcing authorities maintain public registers of contaminated land under section 78R. Section 78T prohibits an authority from publishing information relating to an individual or business if that information is determined to be commercially confidential, unless the affected party consents or a public interest direction requires disclosure.
Information is commercially confidential if including it on the public register would unreasonably prejudice the commercial interests of that person or business. However, any financial prejudice that relates solely to the land's market value, ownership, or occupation is explicitly disregarded.
When potentially confidential information is identified, the authority must notify the person and provide a reasonable opportunity to object. If the authority decides the information is not confidential, it cannot publish it for twenty-one days. If an appeal is lodged with the Secretary of State within that window, publication is paused until seven days after the appeal is decided or withdrawn. Exclusions granted under this section expire after four years unless a renewal application is made.
When it applies
- A factory owner objecting to the inclusion of proprietary chemical processes in a contaminated land register entry.
- A business appealing an enforcing authority's refusal to exclude trade secrets from a public remediation log.
- A site operator re-applying at the end of a four-year exclusion period to keep commercially sensitive processing details private.
What this section does not say
- Excluding information from public registers on the grounds of national security (covered by section 78S).
- Withholding information merely because its publication will lower the property value of the contaminated plot.
- Challenging the service or conditions of a remediation notice itself (covered by section 78L).
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This page reproduces the text of EPA 1990 s. 78T in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.