QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN (on the application of NICHOLAS PERRY)
|- and -
|THE LONDON BOROUGH OF HACKNEY
NEWMARK PROPERTIES (SN) LLP
SAINSBURY'S SUPERMARKETS LTD
William Upton and Emmaline Lambert (instructed by London Borough of Hackney) for the defendant
Reuben Taylor QC (instructed by Berwin Leighton Paisner LLP) for the Interested Parties
Hearing dates: 19th May 2014
MRS JUSTICE PATTERSON :
Crown Copyright ©
i) The claimant's application for disclosure in each action of the un-redacted viability assessment and related documents;
ii) Whether permission should be granted for permission in JR2;
iii) Whether JR2 should be linked with JR1;
iv) The issue of participation of all parties at the substantive hearing of JR1 should it proceed if permission is refused in JR2;
v) The claimant's application for a cost cap in JR2;
vi) Case management directions.
"6.9.12 As less than 50% affordable housing is proposed a 'GLA Three Dragons' viability" appraisal is required to be submitted to accord with London Plan policy 3.12 and Hackney Core Strategy policy 20. This appraisal has been submitted along with additional explanatory information with regard to sales values build costs and information on the existing use value of the site.
6.9.13 The appraisal and accompanying information have been reviewed by external consultants appointed by Property Services surveyors. The appraisal shows that provision of affordable housing is constrained by the site constraints such as proximity to a number of heritage assets, which limits the scale of development that can accommodated on site. When taking into account the existing use value of the site, build costs and associated professional fees for the development, alongside potential sales values from residential units and rental yield from the proposed retail unit, the amount of affordable housing proposed is the maximum amount that can be reasonably achieved on the site.
6.9.14 It should be noted that the Core Strategy 50% affordable housing target was developed at a time when grant funding was available from the Homes and Communities Agency to deliver affordable housing. When such funding was available the Council's Affordable Housing Viability Study which forms part of the evidence base for the Core Strategy noted that 50% affordable housing would be achievable in a high number of scenarios. When grant funding is not available then the 50% affordable target is only achievable in a limited number of scenarios, usually involving sites with low existing use values.
6.9.15 Both London Plan and Core Strategy policies therefore recognise that the 50% target is an aspiration and not a minimum standard, and lower proportions may be acceptable. This needs to be assessed on a site specific basis taking into account scheme viability. It should also be noted that a greater amount of affordable housing has been submitted in comparison to the previously refused scheme on this site (ref: 2009/1264, see history section). In addition the amount of affordable housing has been fully justified in terms of viability. As such the Planning Service consider that the proposed affordable housing provision complies with Core Strategy Policy 20, London Plan policy 3.12 and emerging DMLP policy 21."
"The test will always be whether, in the given case disclosure appears to be necessary in order to resolve the matter fairly and justly.
Where a public authority relies on a document as significant to its decision it is ordinarily good practice to admit it as primary evidence. Any summary, however contentiously and skilfully made, may distort. But where the authority's opponent chooses to summarise the effect of a document it should not be necessary for the applicant, seeking sight of the document, to suggest some inaccuracy or incompleteness in the summary, usually an impossible task without sight of the document. It is enough that the document itself is the best evidence of what it says. There may, however, be reasons (arising, for example from confidentiality, or the volume of the material in question) why the document should or need not be exhibited."
"… I do consider, however, that it would now be desirable to substitute for the rules hitherto applied a more flexible and less prescriptive principle, which judges the need for disclosure in accordance with requirements of a particular case, taking into account the facts and circumstances. It will not arise in most applications for judicial review, for they generally raise legal issues which do not call for disclosure of documents. ……This object will be assisted if parties seeking disclosure continue to follow the practice where possible of specifying which particular documents or classes of documents they require…"
"99. Moreover, fairness in the planning process is not confined to a consideration of the interests of the objectors. It also needs to respect the confidentiality of the applicant because it is to its figures rather than to DTZ's general appraisal that the claimants' point is addressed. It has the gist of the appraisal. It is this actual appraisal, and within that Arsenal FC's figures, that the claimants want. This is emphasised by their constant references to a £50 million funding gap drawn from an e-mail in which that is referred to. But it would be unfair to Arsenal FC for the local planning authority to be made to reveal what was handed to its advisers in confidence in the clear expectation that it would have a very carefully restricted circulation.
100. A planning authority needs to be able to examine matters in a confidential manner with applicants, as was done here, and for that purpose to use independent consultants to whom disclosure of the relevant information is made in confidence. This is the same process that the GLA went through. 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.
101. It is quite clear that the information is confidential and disclosure of it would be in breach of confidence. There is nothing unfair in the non-disclosure of that document, with the gist of the DTZ appraisal being available. "
Discussions and conclusions
"That the test will always be whether in a given case, disclosure appears to be necessary in order to resolve the matter fairly and justly."
As Lord Brown said in the same case disclosure orders are likely to remain exceptional in judicial review proceedings. The courts have to continue to guard against what appear to be "fishing expeditions".
"It is also often the case that the viability report submitted to a planning authority is required to be classified as confidential in part or as a whole. This is to encourage the applicant to disclose the maximum amount of information, which can then be reviewed and reported upon. LPAs should therefore be asked to treat and hold this information on a similarly reciprocal basis and respect that disclosure of confidential information could be prejudicial to the developer (applicant) if it were to enter the public domain. Information will usually be disclosed to the LPA department advisor but not the general public as it may be commercially sensitive."
Permission in CO/1377/2014
i) Misunderstanding and misapplication of Core Strategy policy 20;
ii) Misdirection is relation to the supposed confidentiality of information and whether that should be disclosed under the presumption of disclosure in the Environmental Information Regulations 2004;
iii) Failing to consider excluding the public from the meeting so that any claimed confidential material could be considered in camera;
iv) That the committee relied wholly and uncritically upon the planning officer's assertions about the maximum affordable housing provided and failed to make appropriate enquiries;
v) Failed to allow the plaintiff to scrutinise the question or test the information
All of those matters are individually or cumulatively at least arguable.
Discussion and conclusions
Linking of JR1 and JR2 and the participation of the defendant and interested party in JR1
Case management directions