Confidentiality of viability assessments in planning

01 Jan 2018

Information Law, Planning and Environment

Confidentiality Of Viability Assessments In Planning: Tribunal Overturns Information Commissioner’s Decision That Council Should Disclose Affordable Housing Viability Assessment Submitted As Part Of Planning Application.

In a significant decision for local authorities and developers who rely on confidential viability assessments submitted in support of planning applications, the First Tier Tribunal General Regulatory Chamber (Information Rights) has partly allowed an appeal by Southwark LB under the Environmental Information Regulations 2004 against a decision by the Information Commissioner that the Council should disclose, in response to an information request and in its entirety, a viability assessment submitted to the Council by a developer, Lend Lease, as part of a planning application to redevelop a large site, the Heygate Estate, for housing.

The viability assessment demonstrated that it was not viable to provide 35% affordable housing as part of the development, as required by the Council’s local planning policies, and the developer proposed to provide 25% affordable housing. In fact, the viability assessment showed that even 25% affordable housing was not viable on the site, let alone the 35%, but the developer remained committed to providing 25% and planning permission was granted on this basis. The viability assessment was submitted to the Council on a confidential basis because it included commercially sensitive information, both from the point of view of the developer and of the Council. By the time of the appeal, the Council had of its own volition disclosed large parts of the viability assessment in response to the request, and only the key confidential information remained withheld.

The decision made a number of key findings:

(1) Although it was primarily an economic analysis, the viability assessment was “environmental information” for the purposes of the Environmental Information Regulations 2004 such that the EIR regime applied, rather than the Freedom of Information Act 2000.

(2) The information engaged a number of exceptions to the general right to environmental information in Regulation 12(5) EIR 2004, including 12(5)(c) (intellectual property rights), 12(5)(e) (commercial information) and 12(5)(f) (interests of the volunteer of the information), although it did not engage the exception in 12(5)(d) (confidentiality of proceedings).

(3) The commercial interests of the developer were such as to engage its ECHR rights under Article 1, Protocol 1 and possibly Article 8, although it was doubted whether a properly conducted balancing exercise under Regulation 12 EIR would result in a decision contrary to the Human Rights Act 1998 and there was no breach in this case.

(4) The key issues in the public interest balance were:

(a) The project must not be allowed to fail or be put in jeopardy;

(a) The importance of public participation in decision making;

(b) The avoidance of harm to the developer’s commercial interests.

(1) The public interest favoured withholding the financial model used by the developer as the basis for calculating viability as well as information about sales and rentals. Other information was less commercially sensitive and should be disclosed.

Please click here for a link to the decision.

Damien Welfare and Jack Parker acted for Southwark LB.