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Accessing
information
in the
planning
sphere:
Viability
Assessments
Estelle Dehon, Barrister
at Cornerstone Chambers,
examines the impact of a
recent High Court decision
concerning the disclosure
of a Viability Assessment in
judicial review proceedings
Estelle Dehon leads the training
session ‘FOI Practical Training —
Level 1 (Essential Knowledge)’.
See the website
www.pdptraining.com for
further details.
FREEDOM OF INFORMATION
I
n the previous issue of
Freedom of Information,
the application of the right
of access to environmental
information in the planning sphere
was discussed through the prism of
the First-Tier Tribunal (Information
Rights) (‘FTT’) decision in London
Borough of Southwark v Information
Commissioner and Lend Lease
(Elephant and Castle) Ltd
EA/2013/0162 (9th May 2014).
This decision shows the power of
the Environmental Information Regulations 2004 (‘EIRs’) to unlock commercially sensitive information concerning
the financial viability of a proposed
development. It was argued that the
decision may herald a new era of
reliance on the EIRs by those objecting to proposed development.
The question of disclosure of financial
viability information underlying a grant
of planning permission has now raised
its head at the High Court in the suite
of litigation in Perry v London Borough
of Hackney. This article examines the
rather different approach taken by the
High Court and the Court of Appeal in
this litigation to that taken by the FTT,
and the ramifications of this for objectors seeking access to information in
order to challenge planning decisions.
Perry v LB Hackney
Litigation in the domain of planning is
often driven by local campaign groups
vehemently opposed to what they see
as an inappropriate development in
their area. So it is in the Perry litigation, which concerns Stoke Newington
in Hackney, London, part of which is
designated as a ‘conservation area’,
and contains a number of 18th and
19th Century commercial and residential buildings.
The proposal in question is a 0.51
hectare combined residential/retail
development, which would retain the
façade of a building on Stoke Newington High Street, but would redevelop
the building with a food store on the
ground floor and 53 residential units
above. Only nine of the units were
proposed to be affordable dwellings
(i.e. dwellings with a rent of up to
80% of market value).
The proposal met with resistance,
particularly from a group of residents
V OLU ME 1 1, ISSU E 3
campaigning as ‘Stokey Local’, which
is co-ordinated by Mr Perry. Hackney
made two decisions granting planning
permission for the development, both
of which were challenged by Mr Perry
via judicial review.
One area of concern to residents
was the very low number of affordable
units, given that the London Borough
of Hackney’s planning policy requires
that, for a residential development of
more than 10 dwellings, 50% should
be affordable housing. The developer
contended that the development would
not be commercially viable with that
level of affordable housing, and in
order to justify that position, provided
Hackney’s Planning Officers with a
financial viability assessment compiled
by a property consultancy (‘the Viability Assessment’). That assessment
included consideration of sales values,
building costs and information on the
existing use and value of the site. It
was provided to Hackney on a confidential basis, and concluded that not
more than 17% of affordable housing
was viable (in the sense that a higher
proportion would render the development uneconomic for the developer).
Hackney engaged external property
consultants to examine the Viability
Assessment, who produced an
appraisal which it appears was
supportive of the assessment and
its conclusions. This was reported in
general terms by Hackney’s Planning
Officers to its planning sub-committee.
However, neither the Viability Assessment nor the independent appraisal,
were provided to the members of the
sub-committee. They were expected
to (and did) take the decisions on
whether to grant planning permission
based on the Officer’s description
of the viability evidence.
Surprisingly, this is a very common
occurrence — local authorities take
the view that viability assessments
are so commercially confidential that
they should not ordinarily be provided
to Councillors, but instead sent to
independent property consultants
or chartered surveyors, who evaluate
them on a confidential basis. The
viability evidence underpinning
development is thus often shrouded
in a double layer of confidentiality,
and Councillors and the public are
given only headline versions of this
(Continued on page 10)
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(Continued from page 9)
evidence in officer reports.
Disclosure in judicial
review — beyond the
influence of the EIRs?
The failure to provide the planning
sub-committee members and the
public with the Viability Assessment
was one of the aspects of the grants
of planning permission challenged
in the judicial review proceedings.
Hackney and the developer both
responded that the committee and
the public had been provided with a
sufficient gist of the Viability Assessment in the Officer’s report. Mr Perry
therefore asked that the Viability
Assessment be disclosed.
Initially, the Council and the developer refused; later, a redacted version
was provided. Mr Perry was not satisfied with the redacted version, and
approached both the High Court, and
then the Court of Appeal, in order to
obtain disclosure.
The question in disclosure is different
from that to be considered when
access to information is sought
under the EIRs. The EIRs are
unconcerned with the specific motive
animating a request for information
(given the right of everyone to
receive environmental information
held by public authorities), and
the particular use to which the
information is to be put is relevant
only insofar as it bears on the public
interest in disclosing the information.
By contrast, in judicial review
proceedings, the key issue is
whether the disclosure is ‘necessary’
for the purpose of deciding the
issues raised in the case in a fair
and just manner — a much narrower
avenue of inquiry.
Nevertheless, Mr Perry relied on the
FTT’s decision in the LB Southwark
case, where the Tribunal rejected
the contention that commercial
confidentiality required the Viability
Assessment underpinning a very
large regeneration project not to be
provided to objectors. Instead, the
Tribunal held that only certain information about sales and rentals, and
FREEDOM OF INFORMATION
the developer’s financial model
(bespoke to the developer and
applicable to all its developments),
should be withheld, with the remainder of the Viability Assessment to
be provided.
In [2014] EWHC 1721 (Admin)
at paras 29-30, the High Court
considered the FTT’s decision.
Interestingly, the Court did not
mention anything of the Tribunal’s
discussion of the need for access
to environmental information in
order for the public to participate
in decision-making, nor of the
Tribunal’s recognition of the strength
of this need where the controversy
concerns affordable housing. Instead, the Court fleshed out (almost
in greater detail than did the Tribunal) the FTT’s analysis accepting
the private and confidential nature
of the commercially sensitive information in the Viability Assessment,
and the risk to negotiations should
some of this information be
disclosed.
Accordingly, far from being seen
by the Court as supporting the
disclosure of the majority of the
Viability Assessment, the FTT’s
decision in the LB Southwark case
was cast in a conservative light, with
the focus on protecting commercially
sensitive information from disclosure.
It is arguable that this approach to
the FTT’s decision fails to recognise
that the requirement for disclosure
in court proceedings in order that
matters can be resolved fairly and
justly is an aspect of the need for
transparency and public participation
in decision-making which is at the
heart of the EIRs regime, and that
there are clear echoes of the values
underpinning the EIRs in the principles of disclosure through the courts.
Certainly, the Court did not appear
to appreciate the importance of the
extent of information that the Tribunal did require to be disclosed, as
opposed to the categories of information which were exempted from
disclosure.
By the time the question of
disclosure was considered by the
Court of Appeal in [2014] EWCA
Civ 1372, the discussion was very
narrow indeed and no mention was
made of the LB Southwark decision.
V OLU ME 1 1, ISSU E 3
Disclosure was refused by both
the High Court and the Court of
Appeal, so only the redacted Viability
Assessment was before the court
when it refused the substantive
judicial review in [2014] EWHC
3499 (Admin).
The ground of challenge concerning
Mr Perry’s substantive right under
the EIRs to access the viability
information failed on the basis that
the alternative remedy of statutory
appeal to the Information Commissioner was available and had been
pursued (even though the appeal
was made in 2012 and had not
been determined by the time of
the judicial review proceedings).
Conclusion
As matters currently stand, disclosure of viability information in court
challenges to planning permissions
remains unaffected by the approach
of the FTT under the EIRs to access
to Viability Assessments. This gives
even more incentive to those seeking
to oppose development to pursue
such information through the EIRs
process, rather than waiting to
obtain the information as part of
judicial review proceedings.
It is understood that the substantive
determination is under appeal to the
Court of Appeal, so there may yet be
more to say on whether appeal to the
Information Commissioner under the
EIRs is indeed an effective alternative remedy to judicial review.
Estelle Dehon
Cornerstone Chambers
estelled@cornerstonebarristers.com