www.pdpjournals.com 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) www.pdpjournals.com (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 [email protected]
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