Viability in planning – transparency where it matters?

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We highlighted the significance of the Information Commissioner’s Office (ICO) decision to require disclosure of financial information relating to the Heygate Estate renewal scheme in July last year. Local interest groups had challenged London Borough of Southwark to show the workings out behind an affordable deal that will result in less than 4% of the new homes being social rented. The First Tier Tribunal’s recent decision on the appeal against the ICO’s decision highlights the need for care in dealing with confidential information in the planning process.

Balancing considerations

LB Southwark’s decision to accept 25% affordable housing (rather than the target 35%) in relation to Lend Lease’s Heygate scheme has been under intense local scrutiny. The viability appraisal was submitted on a confidential basis, but local groups sought full disclosure under the Environmental Information Regulations 2004 regime (EIR). The ICO is the first port of call once the authority’s complaints procedure has been exhausted

The ICO heard the challenge to LB Southwark’s decision to refuse disclosure last year. It accepted that disclosure of redacted elements of the reports would be commercially harmful. Nonetheless, applying the public interest test under the EIR regime, it decided that the interest in disclosure outweighed the harm. LB Southwark appealed the decision to the First Tier Tribunal, which has now held that:

  • The viability assessment is “environmental information” under the Environmental Information Regulations 2004. The EIR regime operates with a presumption of disclosure, unlike the Freedom of Information Act 2000 regime.
  • Publication of viability forecast data relating to deals to be done with other businesses should not be disclosed, because the commercial harm was not in the public interest, but private sales and registered provider deals should be.
  • The ICO was wrong to refuse to treat Lend Lease’s development model as a “trade secret” and there was no need to show monetary loss arising from disclosure.
  • The Council’s suggestion of absolute confidentiality in relation to the activities of its staff was wrong. Likewise, there is not always a public interest in maintaining secrecy around public private partnership negotiations – the law on information disclosure is drawn to ensure transparency where it matters.
  • Disclosure of the starting point in negotiations (i.e. the initial viability reports) is not the same as the disclosure of the full continuum of those negotiations – the likelihood of a chilling effect on other deals should be viewed in that light.
  • The public interest warranted disclosure of much of the information – given “the importance, in this particular project, of local people having access to information to allow them to participate in the planning process”.  That factor was held to outweigh the public interest in maintaining the remaining rights of Lend Lease and those subcontractors who contributed to the document.

Information hygiene

Any information with public authorities for partnership and development projects should be viewed in light of the potentially broad scope, purposive intent and presumption of disclosure under the EIR. That includes the usually prolific email communications,  meeting notes and telephone notes. Handling such information should be done with care to minimise the chances of unnecessary disclosure. Importantly, where a departure from policy requirements is being justified on viability grounds then the significance of the competing public interests in facilitating development (in particular partnership approaches to public sector land) and interrogating the viability analysis needs to be borne in mind.

How the viability analysis is put together and disseminated is crucial in striking an appropriate and workable balance. Doing so is far cheaper than making the case for exemptions after the event.

A blog highlighting the significance of the Environmental Information regime in this context, will follow.