Viability continues to shape planning, but the debate is shifting from principles to wider issues of transparency and participation.

As such, the Information Commissioner and the First-Tier Tribunal (FTT) have a key role in hearing appeals under the environmental information regime.

In Royal Borough of Greenwich v Information Commissioner and Brownie [2015], the FTT required pricing and profit assumptions, sales and cost forecasts to be disclosed on a major scheme where the council had agreed to cut affordable housing requirements by 500 units. This is an example of disclosure being required either because it would cause no real commercial harm or because such harm is outweighed by the public interest in understanding the grounds on which controversial decisions are made.

The law only requires disclosure of materials given to the decision-maker.

The courts’ approach is different. Turner v Secretary of State for Communities and Local Government(Planning, 27 March, p31) concerned a challenge to the secretary of state’s decision to approve plans to redevelop the Shell Centre on the South Bank in London. A financial appraisal was submitted with the application to explain the level of affordable housing provision. It was reviewed by the council’s expert, but not forwarded to the secretary of state. The report was reluctantly disclosed two days before the inquiry.

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 Bedford v London Borough of Islington and Arsenal Football Club [2002], where a confidential consideration of viability, in a report giving only the "gist", was allowed. He stressed that the law only requires the disclosure of materials given to the decision-maker.

Two questions stand out. Firstly, the Shell judgment is silent on an authority’s duty to pass application materials on to the secretary of state under section 77 of the Town and Country Planning Act 1990. The call-in direction required all application documents to be sent to the decision-maker, but this did not happen, so the facts were different from Bedford. Secondly, inquiry evidence must be heard in public, unless the secretary of state makes a rare direction for a shielded procedure to scrutinise sensitive information. It may have made more sense to take that route rather than limit the material provided to the inquiry.

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 High Court judge about the conduct of the inquiry.

Published in Planning Magazine, 15 April 2015.