Viability debates continue to shape planning. The frontline is shifting, from debates about key principles, towards the wider issue of transparency and participation.

The Information Commissioner’s Office (ICO) and, ultimately, the First Tier Tribunal (FTT) hear appeals under the Environmental Information regime, intended to give effect international commitments to participatory decision-making. In RB Greenwich v IC and Brownie (EA/2014/0122), the FTT required disclosure of pricing and profit assumptions, sales and costs forecasts.  Given the finding of limited commercial harm, the decision is unremarkable.  It is one example of disclosure being increasingly required either because there is little real harm or that real harm is outweighed by the public interest in understanding the reasons for particularly controversial decisions.

The Courts’ approach is different. George Turner v SoS CLG and others [2015] EWHC 375), concerned a challenge to the Secretary of State’s decision to approve the Shell Centre redevelopment.  A financial appraisal was submitted with the application to explain the level of affordable housing provision (and reviewed by the local authority’s expert). It was not forwarded to the SoS. The expert’s summary report was reluctantly disclosed two days before the inquiry began. The claimant argued that it was impossible to properly determine the viability justification for the departure from plan policies without scrutiny of the full appraisal.

In rejecting the claim, the judge followed the Arsenal case (Bedford v LB Islington and Arsenal Football Club Plc [2002]) where a confidential consideration of viability, with a report giving only the “gist of” the findings, was allowed. He stressed that the law only requires the disclosure of the materials placed before the decision maker.

Two questions stand out.  Firstly, the judgment is silent on an authority’s duty to pass application materials to the Secretary of State (under s.77 TCPA 1990). The Call-In Direction required all application documents to be sent to the decision maker. That did not happen. The facts were therefore different to Bedford.  Secondly, inquiry evidence must be heard in public, unless the SoS makes a – rare – direction for a shielded procedure for scrutiny of sensitive information.  It may have made more sense to use that process, rather than limit the material provided.

The Court of Appeal will now consider these issues in deciding whether to hear the claimant’s appeal, in the context of real concerns recognised by the judge at first instance about the conduct of the Inquiry.