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Accessing
information
in the
planning
sphere:
viability
assessments
Estelle Dehon, Barrister
at Cornerstone Chambers,
discusses a recent significant
decision affecting treatment
of requests for access to
commercially sensitive
information in the
planning sphere
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
P
lanning authorities and other
actors in the planning sphere
hold a significant amount of
information which may be of
interest not only to developers, but to
those objecting to development and to
those with concerns about protection
of the environment.
Although there has been sporadic
litigation, particularly concerning
attempts to obtain copies of legal
advice given to planning authorities,
many practitioners are of the view
that there is yet to be significant
reliance in the planning sphere on
the right of access to environmental
information provided by Environmental
Information Regulations 2004 (‘EIRs’).
This is so even though the EIRs provide a stronger right of access to information than exists under the Freedom
of Information Act 2000 (‘FOIA’).
This article explores a recent decision
which may herald a change, and
which may augur increased requests
for access to commercially sensitive
information in the planning sphere.
Overview of the legal
regime
The EIRs give effect in domestic law
to the EU Directive on public access
to environmental information (Directive
2003/4/EC) (‘Directive 2003/4’). This
in turn derives from the Convention
on Access to Information, Public
Participation in Decision-Making
and Access to Justice on Environmental Matters (‘the Aarhus Convention’),
which entered into force on 30th
October 2001.
The UK and the European Community
are both signatories to the Aarhus
Convention. As its name suggests,
the Aarhus Convention establishes
three pillars necessary for environmental protection: the right of everyone to receive environmental information that is held by public authorities; the right of public participation
from an early stage in environmental
decision-making; and the right of
affordable access to justice.
The Court of Justice of the European
Union (‘CJEU’) has observed that
Directive 2003/4 and the Aarhus
Convention constitute ‘a regime
which is designed to achieve the
V OLU ME 1 1, ISSU E 2
widest possible systematic availability
and dissemination to the public of
environmental information held by
or for public authorities” [Case
C‑279/12 Fish Legal].
The EIRs establish a robust regime of
access to ‘environmental information’,
which is defined extensively in
Regulation 2(1) as:
‘[A]ny information in written, visual,
aural, electronic or any other material
form on –
(a) the state of the elements of the
environment, such as air and atmosphere, water, soil, land, landscape
and natural sites including wetlands,
coastal and marine areas, biological
diversity and its components, including
genetically modified organisms, and
the interaction among these elements;
(b) factors, such as substances,
energy, noise, radiation or waste,
including radioactive waste, emissions, discharges and other releases
into the environment, affecting or
likely to affect the elements of the
environment referred to in (a);
(c) measures (including administrative
measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting
or likely to affect the elements and
factors referred to in (a) and (b)
as well as measures or activities
designed to protect those elements;
(d) reports on the implementation
of environmental legislation;
(e) cost-benefit and other economic
analyses and assumptions used within
the framework of the measures and
activities referred to in (c); and
(f) the state of human health and
safety, including the contamination
of the food chain, where relevant,
conditions of human life, cultural sites
and built structures inasmuch as they
are or may be affected by the state
of the elements of the environment
referred to in (a) or, through those
elements, by any of the matters
referred to in (b) and (c)’.
Regulation 12(2) requires public
authorities to ‘apply a presumption
in favour of disclosure’. This reflects
Recital 16 of Directive 2003/4, which
provides that disclosure of information
‘should be the general rule’, and that
exemptions to disclosure ‘should be
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FREEDOM OF INFORMATION
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(Continued from page 5)
interpreted in a restrictive way’.
The presumption in
the EIRs thus ensures
that appropriate
weight is given to
the general interest in
citizens having access
to environmental information and being able
to participate in environmental decisionmaking.
In contrast to FOIA,
almost all of the exemptions in the EIRs
on which authorities
may rely to refuse a
request are qualified
— it must therefore
be shown that in all
the circumstances
of the case, the public
interest in maintaining
the exemption
outweighs the
public interest
in disclosing
the information
(Regulation 12(1)(b)).
The only absolute
exemption is where
the request includes
personal information
of which the applicant
is not the data subject
(Regulations 12(3)
and 13).
play, the EIRs require that
‘disclosure would adversely effect’
the matters protected by these exemptions. In contrast, FOIA requires
only that disclosure ‘would be likely
to prejudice’ the
protected matters.
“It is a short step
from requiring
the provision of
certain viability
information relied
on during the
planning stage
of public/private
partnership
developments,
to requiring its
provision during
the planning
stage of large
wholly private
developments.
Many of the
same public
interest
arguments apply,
particularly in
relation to the
importance
of transparency
in decisions
concerning
affordable
housing, and the
public interest in
its provision.”
There are also fewer
exemptions under
the EIRs than under
FOIA (for example,
there is no exemption
in the EIRs in relation
to policy information
or information likely
to prejudice the
economic interests of
the United Kingdom).
Further, a number of
exemptions are more
narrowly drawn under
the EIRs than under
FOIA (for example,
compare the exemption relating to confidential or commercial information in sections 41
and 43 FOIA with that in Regulation
12(5)(d) and (e) of the EIRs). Where
prejudice-based exemptions are in
The First-tier
Tribunal
(Information Rights)
(‘FTT’) made it plain
in Stafford County
Council v IC and
Sibelco (UK) Ltd
[2010] UKFTT 573
(GRC) that, even
if a request for
environmental
information is made
solely under FOIA,
the relevant public
authority is required
to treat the request
as having been
made under the
EIRs.
The Southwark
case —
accessing
viability
information
In the planning
world, information
concerning the
commercial viability
of a proposed
development has
significant value.
It may be relevant
to whether planning
permission should
be granted (for
example, where
one development
is required to make
another linked development viable).
It may also be
relevant to whether
certain planning
policy requirements
bite (for example,
whether a significant
percentage of a
new residential development should
be provided as affordable housing,
below market value). It is almost
always the case that a developer
V OLU ME 1 1, ISSU E 2
which provides viability information
to a local planning authority in
support of a planning application
does so on the basis that the viability
report will be kept confidential.
A recent decision by the FTT shows
the power of the EIRs to unlock this
‘confidential’ information. London
Borough of Southwark v IC and
Lend Lease (Elephant and Castle)
Ltd EA/2013/0162 (9th May 2014)
concerned a request by a resident
of Southwark for the viability assessment which supported a planning
application made by Lend Lease
for the redevelopment of a very large
estate in south London. The scope
of the project was significant, with
Lend Lease funding and delivering
the infrastructure and energy
requirements of the development,
‘essentially building an entire town
centre at its own risk’. The viability
assessment demonstrated that it was
not viable for Lend Lease to provide
35% affordable housing as part of
the development, as required by the
Council’s local planning policies, and
the developer proposed to provide
25% affordable housing.
The viability assessment was
submitted to the Council on a
confidential basis, because it
included commercially sensitive
information. Lend Lease contended
that the assessment contained
a ‘treasure trove of competitively
sensitive information’, including
Lend Lease’s financial model,
applicable to the majority of its
large developments.
The Information Commissioner
undertook a detailed analysis of
the public interest and ordered
that the entire viability assessment
be disclosed, including the financial
model. He also adopted a robust
position before the Information
Tribunal, canvassing the European
law background and emphasising
that the aims of Directive 2003/04
and the Aarhus Convention in
ensuring effective public participation
in environmental decision-making
should not routinely be overridden
by claims of commercial confidentiality, particularly where large amounts
of public money are at stake.
The FTT partly allowed the appeal,
finding that the public interest
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favoured withholding the financial
model as well as certain information
about sales and rentals. However,
the remainder of the viability assessment was required to be provided.
The Information Tribunal rejected
arguments that the viability assessment was not ‘environmental information’. Although it was primarily
an economic analysis, the Tribunal
held that the project which the viability assessment underpinned was
so large that it would be likely to
affect the state of the landscape
as an element of the environment.
Consequently, the assessment fell
within the definition in Regulations
2(1)(c) and (e).
The Tribunal accepted that the
commercial interests of the developer were such as to engage its rights
under European Convention of
Human Rights, specifically Article
1, Protocol 1 (the right to peaceful
enjoyment of property) and possibly
also Article 8 (the right to private
life). However, the Tribunal doubted
whether a properly conducted
balancing exercise under Regulation
12 would result in a decision contrary
to the Human Rights Act 1998, and
held it did not do so in the instant
case.
In relation to the public interest
balance, the Tribunal considered that
the key issues were:
 that the project must not be al-
lowed to fail or be put in jeopardy;
 the importance of public participation in decision making; and
 the avoidance of harm to the developer’s commercial interests.
In a terse single paragraph, the
Tribunal accepted that the financial
model developed by Lend Lease was
a trade secret, and that the harm to
Lend Lease’s commercial interests
by its disclosure was not outweighed
by the benefits of disclosure. The
Tribunal came to the same conclusion about information concerning
sales and rentals, which would be
the subject of commercial negotiation
between Lend Lease and other
businesses.
The Tribunal then considered the
other information in the viability
assessment. It held this was ‘less
FREEDOM OF INFORMATION
commercially sensitive’, and that
the public interest balance was thus
different. The importance of local
people having access to information
to allow them to participate in the
planning process of a large project
with substantial effects on them
outweighed the public interest in
maintaining the remaining rights
of Lend Lease.
Conclusion
This is a significant step forward
from the FTT’s previous decision in
the area of access to commercially
sensitive information in the planning
sphere. Chichester District Council
v ICO and Friel EA/2010/0153 (5th
August 2010) concerned valuation
carried out by the District Council of
land under its ownership, and which
the District Council itself wished to
develop.
The Tribunal held that, although
the detail of the land valuation
was an internal communication
within a public authority (and thus
covered by the exemption in Regulation 12(4)(e) of the EIRs), the public
interest required disclosure. The
Tribunal observed that ‘particular
scrupulousness’ was required where
the council was both landowner
and planning authority. It was also
concerned at what it termed a ‘deficit
of democratic engagement’ which
resulted from the development of
the land falling within the purview
of the District Council’s Executive
Committee and planning officers,
rather than being discussed openly
in Council meetings.
V OLU ME 1 1, ISSU E 2
Chelsea has withdrawn an appeal
against a decision by the Information
Commissioner that it make available
parts of a confidential viability report.
It is a short step from requiring
the provision of certain viability
information relied on during the
planning stage of public/private
partnership developments, to
requiring its provision during the
planning stage of large wholly private
developments. Many of the same
public interest arguments apply,
particularly in relation to the
importance of transparency in
decisions concerning affordable
housing, and the public interest
in its provision.
The ‘democratic deficit’ argument
may also be relevant, as confidential
viability assessments are often
not made available even to the
councillors on the planning committees determining the applications.
That being the case, it may only
be a matter of time before requests
for access to viability information
underpinning controversial large
planning applications become a
much more frequent occurrence.
Although important, the Chichester
District Council decision was limited
to the comparatively infrequent situation where a local authority is both
developer and planning authority.
The LB Southwark decision opens
the field to public/private partnership
developments, and is significant in
requiring access to commercially
sensitive valuation information
provided by a private developer.
It has already had an impact on
another redevelopment scheme —
that in Earl’s Court. As a result of
the LB Southward decision, the
Royal Borough of Kensington and
Estelle Dehon
Cornerstone Chambers
[email protected]