Town and country planning – Planning permission – Viability assessment – Claimant applying for judicial review of defendant’s decision to grant planning permission to redevelop site – Whether defendant breaching duty to publish background papers to committee report – Application granted
The claimant was the leaseholder of 49-50 Eagle Wharf Road in Hackney where it ran one of the largest photographic studio complexes in Europe. Other media enterprises were licensed to use parts of the building. Planning permission was initially granted in December 2016 to redevelop the site for employment and residential purposes. Applications for judicial review were granted on the basis that the procedure followed in relation to amendments to the planning application deprived the claimant and others of a fair opportunity to make representations about them and materially prejudiced the claimant: [2017] EWHC 2823; [2017] PLSCS 207.
Under section 100D(5) of the Local Government Act 1972, local authorities were required to make available background papers to committee reports unless they contained “exempt information” which included information relating to financial or business affairs of a person (para 3 of part 1 to schedule 12A) so long as the public interest in maintaining the exemption outweighed the public interest in disclosing the information (para 10 of Part 2 to schedule 12A).
A fresh planning permission was granted in 2019 but the claimant applied for judicial review. It contended, amongst other things, that the defendant’s approach to the information provided in respect of the viability assessment for the proposed development which informed the contributions which were sought from the developer, in particular in relation to affordable housing, failed to comply with national planning policy in relation to the provision of information in respect of viability assessments; that that approach was in breach of a legitimate expectation in respect of the disclosure of viability information; and that the viability information provided was in breach of the defendant’s duties relating to publication of background papers to the committee report.
Held: The application was granted.
(1) It was clear from the evidence that there was a significant quantity of documentation bearing upon the viability issues generated both before and especially after those documents that were published in relation to viability on the defendant’s website. While not all of that material needed to be produced and listed it was inconceivable that none of that material would have qualified under section 100D(5) of the 1972 Act. Therefore, there was information which should have been listed and of which copies should have been provided for inspection.
(2) In accordance with the National Planning Policy Framework (NPPF) viability assessments (where they were justified) had to reflect the approach set out in planning policy guidance (PPG), and be made publicly available. Following the approach recommended in the NPPF and the PPG, standardised inputs had to be used including, for the purpose of land value, a benchmark land value based upon existing use value plus as described in the PPG. As set out in the PPG, the inputs and findings of a viability assessment had to be set out in a way that aided clear interpretation and interrogation by decision-makers and be made publicly available save in exceptional circumstances. As the PPG made clear, the preparation of a viability assessment was not usually specific to that developer and thereby need not contain commercially sensitive data. Even if some elements of the assessment were commercially sensitive, as the PPG pointed out, they could be aggregated in a published viability assessment to avoid disclosure of sensitive material.
It was clear from the material in the NPPF and the PPG that save in exceptional circumstances the anticipation was that viability assessments, including their standardised inputs, would be placed in the public domain in order to ensure transparency, accountability and access to decision-taking for communities affected by development. The interests served by placing viability assessments into the public domain were clearly public interests. It was unclear based on the material before the court how, if ever, the defendant considered the question of the public interest in relation to that exemption in the context of the relevant national planning policy. Therefore, the court was unable to accept the defendant’s submission that its failure to comply with section 100D of the 1972 Act was justified because the material withheld was exempt information: R (on the application of Perry) v Hackney London Borough Council [2014] EWHC 3499 distinguished.
(3) The material contained in the public domain, when the decision was taken by the planning committee to resolve to grant planning permission, was inconsistent and opaque. No explanation was provided as to how the benchmark land value had been arrived at in terms of establishing an existing use value and identifying a landowner’s premium as was asserted to have been the case. Read against the background of the policy and guidance contained in the NPPF and the PPG, it was not possible to identify from the material in the public domain standardised inputs of the existing use value and landowner’s premium, and the purpose of the policy to secure transparency and accountability in the production of viability assessment was not served. In particular, it was plain from the material available at the time of the decision that there was substantial additional background material on which the committee report was based, which was neither listed nor available for inspection in accordance with the 1972 Act.
(4) The purpose of having a legal obligation to confer a right to know in relation to material underpinning a democratic decision-taking process was to enable members of the public to make well-informed observations on the substance of the decision. The failure to provide the background material underpinning the viability assessment in the present case, in circumstances where such material as was in the public domain was opaque and incoherent, was a clear and material legal error in the decision-taking process. In reality, the material with which the public was provided failed the defendant’s own test of being adequate to enable members of the public to make a sensible response to the consultation on the application. The flaws in the material available in the public domain and the defaults in the provision of background information were sufficient to establish the validity of the claimant’s complaints: R (on the application of Joicey) v Northumberland County Council [2014] EWHC 3657; [2014] PLSCS 312 followed.
Richard Harwood QC (instructed by Harrison Grant) appeared for the claimant; Andrew Fraser-Urquhart QC (instructed by Hackney London Borough Council) appeared for the defendant.
Eileen O’Grady, barrister
