PP 2010/151

The court in R (on the application of English) v East Staffordshire Borough Council [2010] EWHC 2744 (Admin) had to determine a contested application by the claimant for permission to apply for judicial review of a decision by the local planning authority (LPA) to grant planning permission for a development of 28 detached houses, contrary to development plan policies. The claimant had objected to the proposal. The LPA had accepted that the development was “enabling development”, that is, it would fill a funding gap that the developer faced in constructing a national football centre of excellence on an adjoining site, for which planning permission had also been granted. The practical issue that the case raises is this; to what extent is it lawful for an LPA to withhold from its planning committee – and objectors – pertinent financial information regarding a proposed development on the ground of commercial confidentiality. The developer had submitted a financial report explaining how the residential development would fill the funding gap. It insisted, however, that the report was confidential and should not be disclosed to any third party without its consent. The LPA agreed and commissioned an independent review of the report. The claimant argued that the procedure adopted was unfair and that he was thereby substantially prejudiced. The financial analysis was not in the public domain, and so the claimant could not scrutinise it. The court rejected the claimant’s contention and refused permission, holding that there was no arguable case for seeking judicial review. This was largely on the basis of R (on the application of Bedford) v Islington London Borough Council [2002] EWHC 2044 (Admin), in which Ouseley J had rejected an argument of procedural unfairness in similar circumstances. He said: “A planning authority needs to be able to examine matters in a confidential manner with applicants… and for that purpose to use independent consultants to whom disclosure of the relevant information is made in confidence… If a local planning authority cannot do that, it will be hindered in its negotiations with developers over the content of publicly beneficial packages such as the extent of affordable housing and other legitimate benefits related to the value of the development and its funding. The public interest would be harmed.” John Martin is a freelance writer