Viability in planning – the environmental information regime

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The recent First Tier Tribunal (FTT) (Information Rights) decision on disclosure of key parts of Lend Lease’s Heygate Estate viability appraisal illustrates the important differences between the Environmental Information and Freedom of Information Act 2000 (FOI) regimes. The differences are significant for applicants and public-private joint ventures, where thought is needed on preventing unecessary information leakage.

FOI and EIR

Both the FOI Act 2000 and Environmental Information Regulations 2004 (EIR) give rights of public access to information held by public authorities. The differences are worth noting:

  • The EIR implement European Directive 2003/4/EC on public access to environmental information, which follows and expands on the 1998 Aarhus Convention. The Convention’s primary goal is to increase the quality and extent of public involvement in and scrutiny of decisions on the environment. The EIR regime must be approached in that light.
  • All of the exceptions to disclosure under the EIR are ‘qualified’ – if any exception is engaged it is still necessary to consider the balance of the public interest in maintaining the exception or disclosing the information. This includes areas that are absolute exemptions under the FOI regime (such as confidentiality).
  • The FOI exemption on commercial prejudice is stronger: the EIR require the authority to prove there ‘would be’ harm, in the sense of being more probable than not (as opposed to merely a significant chance under FOI). Assembling and presenting that kind of evidence is often challenging.  As above, the public interest test will still apply (and the ICO’s decisions confirm that the threshold for non-disclosure is high).
  • EIR exceptions must be interpreted and applied narrowly. Redaction, not refusal to disclose, should be the starting point. Unlike FOI, there is an explicit presumption of disclosure in the EIR.
  • EIR only covers ‘environmental information‘.  Whilst the First Tier Tribunal expressed concern in the Heygate decision about the burgeoning use of EIR for planning matters, the practice of the ICO (see below) suggests that it will continue to be used broadly.

The ICO and FTT are there to strike the balance between giving the public the ‘full picture’ and giving it enough information – perhaps in summary form – to participate without undermining the quality of the commercial information provided.

As noted in the previous blog, the FTT decided in Heygate that despite the significant Picture1controversy concerning the disposal of public land and delivery of affordable housing, only parts of the appraisal materials should in fact be disclosed.  We understand that the Royal Borough of Kensington & Chelsea is now withdrawing its appeal against the ICO’s decision to require disclosure of the viability assessments in relation to Capco’s proposed scheme at Earls Court. The FTT hearing was scheduled for mid-June but the campaigners now expect the authority to disclose unredacted documents. The ICO had criticised the RBKC’s reasoning for withholding Capco’s financial model and costs assumptions as ‘lacking substance or detail’.  It also noted that two viability reports had been prepared – one for public use and the other withheld, showing different levels of viable affordable housing outturn.

Dodging the bullet

The FOI regime allows authorities to refuse to deal with requests that would take too long – more than 18 hours – to process. This is usually because the request has been poorly targeted, but it is increasingly used by authorities to dodge disclosure.  The position under EIR is harder – whilst the exception for ‘manifestly unreasonable’ requests can apply, the ICO has acknowledged that the EIR are intended to have a much higher bar for resisting disclosure under this heading than FOI. Monmouthshire County Council was unable to resist disclosure of material relating to the allocation and development of Deri Farm in August 2013 on this basis, despite estimating that it would take 25 person hours to do so.  The public interest in understanding the site allocation process was key.  Strategic land owners should be therefore careful what they include in pre-allocation correspondence.

In the Heygate case, LB Southwark accepted the disclosure request from a local pressure group as an EIR request, but then sought to characterise it on appeal as an FOI matter. Had it been successful, the absolute FOI exemption relating to confidential information would have applied. Whilst the FTT did not accept this, it did express reservations about the increasingly widespread application of the EIR to planning matters.

Scope of EIR

Whilst authorities will increasingly seek to deal with information requests under FOI rather than EIR, they will, and should, struggle in many cases. The Tribunal’s October 2013 judgment concerning the Independent School Playing Fields Advisory Panel minutes relating to Wandsworth Borough Council’s application for consent to dispose of school playing fields at Elliott School in Putney is a case in point. The FTT accepted that the Panel and the Secretary of State were only concerned with the educational impact of disposal of the playing field land (rather than land-use issues), but upheld the ICO’s April 2013 decision that FOIA did not apply and the request had to be dealt with under the EIR regime. It did so on the basis that Wandsworth Council’s disposal application included “information indicating an intention for the playing fields of the school to be redeveloped for housing” and that if consent was given, it is more likely than not that the Council would pursue its plans to redevelop and the measure would be likely to affect the land or landscape. As such, it was a measure ‘affecting or likely to affect’ the environment.  The starting point was of disclosure in the public interest.

Applicants, authorities and objectors therefore need to consider the EIR – and the related decisions of the ICO and the FTT – to ensure that when applications are dealt with  the right balance is struck between disclosure and confidence.