Planning permission – Development — Viability — Confidential information – Claimants applying for judicial review of grant or outline planning permission – Claimants arguing proposed development not viable – Whether decision making process being procedurally flawed — Application dismissed
The claimants applied for judicial review of the decision of the defendant local authority to grant to the interested parties outline planning permission and conservation area consent for a redevelopment of the Whitgift Centre and surrounding land in Croydon. The centre was in the Croydon Metropolitan Centre and in part of the retail core. The first and second claimants were trustees of the land in question. The third and fourth claimants were their nominee companies. The proposal was to upgrade the retail element and provide leisure facilities and housing to attract residents to the centre of Croydon. The inclusion of housing carries with it the need to provide a percentage of affordable housing. The first interested party was a major international shopping centre developer and operator. The second interested party was a retail property specialist. They had agreed to co-operate in bringing forward a comprehensive redevelopment of the centre. The proposed developer was the third interested party. The fourth interested party, jointly owned by the first and second, held title to the headlease.
On 5 February 2014 planning permission and conservation area consent were granted. In addition, the defendants, the third, fourth and fifth interested parties and Transport for London entered into a deed of agreement pursuant to section 106 of the Town and Country Planning Act 1990. The claimants had the main operating interest in the land which formed the Whitgift Centre largely through long leaseholds. Since they opposed the redevelopment, a compulsory purchase order (CPO) was made on 15 April 2014 and an inquiry fixed for 2015.
The claimants contended, amongst other things, that the decision-making process was procedurally flawed because they had not been able to see a confidential report commissioned by the third interested party to consider the overall viability of the scheme which had prevented them from making their objections in a focused manner. Furthermore, committee members had not seen the full text of the confidential report and did not have the full picture. An earlier report in April 2013 had stated that the residential element of the scheme was unviable and that a full assessment of the whole scheme should be carried out. Consequently, the defendants’ director planning had reported that the level of 50% affordable housing contained in the Croydon Local Plan were not achievable but that planning obligations entered into would secure 15% affordable housing which met the requirements of the Croydon Opportunity Area Planning Framework.
Held: The application was dismissed.
(1) It was inevitable that, in considering whether planning permissions should be granted, particularly where viability might either generally or in certain respects be not only material but possibly determinative, developers might need to give confidential information which should not be generally disclosed. That information would usually be given to officers who would then have to consider what should be before the committee. That in principle confidential information need not be disclosed was clear. There were three important caveats. First, the information given to the committee by the officer had not to be misleading and had to properly include any information which would materially affect the decision to be made. Secondly, the committee was not to receive and act on information which was not provided to would-be objectors. Thirdly, the information withheld had to be confidential. It was reasonable to take the view that where issues were raised about the level of information given and whether the scheme could certainly go ahead confidentiality could properly be maintained. There would be sensitive negotiations needed before the final information could be put to obtain planning permission. Once permission was granted, the need for confidentiality of the draft reports was removed: R (on the application of Bedford) v Islington London Borough Council [2002] EWHC 2044 (Admin) applied.
(2) In the present case, it was important to recognise that a CPO was needed. Viability, albeit particularly material to the affordable housing element since it was limited to 15%, was not generally speaking a proper reason for refusing permission, at least where a reputable developer put forward a scheme which he maintained he intended to pursue. If third parties were likely to be affected because land might be subject to permission which was not viable but which might have an adverse impact on them, viability would be material. In this case, since it was known that a CPO would be needed, deliverability would have to be demonstrated. Thus the claimants’ rights would be protected. In the circumstances, overall viability was not a matter to be considered in detail since it would not be a reason to refuse outline planning permission. It was a matter to be taken into account in considering whether the affordable housing requirement could be met. The claimants had been given a fair chance to make their objections and they would, in any event, have a fresh opportunity to put their case at the CPO inquiry in 2015. All relevant information would be available at that inquiry; the viability and deliverability of the scheme would have to be comprehensively demonstrated by the interested parties and the claimants’ rights would be fully protected.
Russell Harris QC and Matthew Reed (instructed by CMS Cameron McKenna) appeared for the claimants; David Elvin QC and Richard Turney (instructed by Pinsent Masons) appeared for the defendants; Nathalie Lieven QC (instructed by Herbert Smith Freehills LLP) appeared for the first to fourth interested parties; The fifth interested party did not appear and was not represented.
Eileen O’Grady, barrister
