The profitability of development is, more than ever, critical to starting, lending or foreclosing on the schemes that shape the country. Viability issues are also central to the credibility of proposals for historic assets, arguments for competing forms of development (whether on the same site or sequentially preferable locations) and deciding acceptable planning contributions. The evidence submitted, usually to justify a 'discount' against affordable housing requirements, varies in its complexity and reliability. It will include information that applicants wish to keep out of the public domain. Disclosing details of land payment, management fee, build cost, contractor profit and revenue assumptions to competitors may cause real harm. Recent tribunal and court decisions confirm the need for caution in making the case for relaxation of policies.
Environmental Information
The Environmental Information Regulations 2004 give rights of public access to environmental information held by public authorities. They implement European Directive 2003/4/EC on public access to environmental information (which closely follows, and expands on, the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters 1998). The primary goal of Aarhus is to increase the quality and extent of public involvement in, and scrutiny of, decisions affecting the environment. One exception is where disclosure would adversely affect commercial confidentiality protecting a 'legitimate economic interest'. There is still a presumption of disclosure, however (and the balance of public interest in maintaining confidentiality versus disclosure must be weighed). The Information Commissioner is the first port of call once the authority's complaints procedure has been exhausted.
In a decision on 17 May 2010, the Commissioner accepted that an applicant's viability evidence (relating to development at Hampton Court) was commercial and confidential. Disclosure was ordered, though, because the Commissioner refused to accept that disclosure would clearly harm the applicant's future ability to enter into contracts or negotiate rental levels.1 A week later, the First Tier Tribunal (which hears appeals from Commissioner's decisions) took a different view concerning viability information associated with listed building works (Bristol City Council v Portland and Brunswick Squares Association, May 2010). The developer had applied for, among other things, conservation area consent to demolish the Lakota Building in the St Paul's area of Bristol. PPG15 required clear evidence justifying the lack of alternatives to demolition. Public requests for the viability data were refused on the basis of the confidentiality exception. The Tribunal found that disclosure of the Lakota viability data would adversely affect confidentiality that protected a legitimate economic interest (and that the developer's concerns were genuine and reasonable). Nonetheless, the Tribunal decided that the public interest in maintaining confidentiality did not outweigh the public interest in its disclosure. The authority was making a "specific environmental decision about the demolition of a protected building which was imminent and controversial". The viability work was directly relevant to (and a major factor in) that decision. The fact that the authority owned part of the development site gave rise, in the Tribunal's view, to a need for 'particular scrupulousness' and would have increased the desirability of disclosing to the public everything relevant to the case.
Procedural fairness
The High Court's approach to a judicial review challenge relating to development forming part of the Brent National Football Stadium scheme adopts a different approach (R (English) v East Staffordshire BC [2010] EWCH 2744). The judge was asked to consider whether the local authority had acted unfairly in withholding financial appraisals from councillors and the public. The data justified the applicant's case that a housing scheme was required (although unacceptable in planning terms) to 'enable' the stadium scheme (a separate application). The judge concluded that there had been no procedural unfairness and that the Lakota decision was irrelevant. The public 'had the gist' of the appraisals and, applying an Arsenal case from 2000, that was enough. The judge also found that a 5 week delay in issuing proceedings breached the requirement for 'promptness' in bringing claims, caused prejudice and would have led him to refuse to quash the permission in any event. The financial means of the claimant and the existence of a 6 week rule for challenges under s.288 TCPA90 weighed against the claimant.
Aarhus
Other cases (Pallikaropoulos, Garner) have been interpreted as signalling a different approach to promptness and the purposive approach to Aarhus requirements. The Arsenal case was heard before the Environmental Information Regulations 2004 came into force. A purposive approach to disclosure in East Staffordshire may have emphasised the value of scrutiny and involvement rather than the acceptability of getting the gist of things. It is worth noting that the East Staffordshire case was not argued on the basis that the refusal to disclose was a breach of a statutory duty under the Environmental Information Regulations (and their purposive scope in light of the Aarhus Convention), however. It is also very unlikely that an Inspector would accept withholding of evidence at an inquiry.
Decisions about disclosure continue to need to be informed by consideration of the nature of the evidence provided by applicants, risk of appeal, the genuine harm from disclosure (both to them and to those wishing to make an informed comment) and the scope for the methods of processing and assessing it.
Footnotes
1. An appeal against this decision (ref: ICO FER0237856) is pending and is expected in the New Year.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
