No matter how thick the marker pen in redactions or how bold the caveat on viability assessments, there will always be an argument in favour of disclosure in the public interest. 

This was the broad conclusion of the First-Tier Tribunal's decision regarding Greenwich Council's handling of viability assessments supporting applications to vary s106 obligations for affordable housing provision on the 10,000 home Greenwich Peninsula scheme.

The role of viability assessments

Viability assessments are an increasingly important part of the evidence base for the negotiation (or re-negotiation) of planning obligations given by developers to planning authorities. The ability (under section 106BA of the Town and Country Planning Act 1990), for developers to apply, straight away, for the amendment and even removal of affordable housing obligations and the recent availability of a vacant buildings credit (against affordable housing contributions) have increased their role and significance in the planning process. Whilst developers are encouraged, if not required, to adopt an open book approach with planners, there remains an understandable reluctance amongst developers to see their financial models and assumptions laid bare in public and, perhaps more importantly, open to scrutiny by their competitors. That reluctance has been made starker following the decision that a developer's full viability model has been made subject to public disclosure. 

Salient facts of the case

Following the initial negotiation of the s106 agreement and grant of planning permission the ownership of the 'planning rights' transferred in stages to Knight Dragon, which then sought, through two variations, to amend the quantity and location of affordable housing to be provided. Both applications were supported by viability assessments and Greenwich instructed its own expert to assess and report on those to Members. Redacted versions of the reports were provided to the party seeking disclosure under a Freedom of Information request but the Tribunal subsequently ordered disclosure of the full reports, judging that the public interest in maintaining confidentiality did not outweigh the public interest in disclosure.

Presumption in favour of disclosure

The developer's report contained bold statements regarding confidentiality, referenced to the Freedom of Information Act (FOIA). In a similar vein, the report commissioned by Greenwich was headed "private and confidential". However, far from accepting these statements at face value, the Tribunal came at them from a very different angle. It was the Tribunal's view that (notwithstanding that the issues were eventually considered in the context of the Environmental Information Regulations (EIR)) the developer and those advising the developer, in including a confidentiality clause were acknowledging the starting point that information provided to a public authority would be subject to disclosure.

Arguments that failed

  • The Tribunal did not seem well disposed to the developer from the start, noting that it had bought into the development in the full knowledge of the planning obligation that had been freely negotiated at the point of the grant of planning permission.  The Tribunal was therefore uncomfortable with the proposition that the developer should come, on two separate occasions, to seek concessions from the Council to reduce the level of affordable housing, provided for the public benefit, whilst seeking to withhold from the public the justification for doing so.
  • The developer then sought to establish a general public interest in the maintenance of confidentiality, which the Tribunal found to run entirely contrary to the principles of FOIA/ EIR.
  • The Tribunal was more persuaded by arguments seeking to protect the developer's expertise in the face of competition.  However, the Tribunal could not overlook the fact that much of the information in the reports was likely to already be known to competitors; the reports did not contain trade secrets but rather conclusions drawn from that publicly available information, where competitors would be capable of drawing their own conclusions in any event.
  • The Council's Members had been at pains to make clear, at the time, that decisions on the Greenwich Peninsula scheme would not be a precedent for other sites in the Borough and so arguments that disclosure would undermine the authority's ability to conduct future negotiations on affordable housing did not gain traction either.
  • The Tribunal also rejected arguments that the details shouldn't be disclosed because they would be difficult for a member of the public to interpret. It was quick to accept the information requester's argument that a suitably qualified expert could have been engaged, just as such experts had been engaged by both the developer and the Council.
  • Finally, the Tribunal was unconvinced that what was, by then, rather dated information and assumptions about the site would necessarily prejudice the value of the site. The market price for an asset at a later point being more likely to be determined by a purchaser's estimate of its value and the number and type of competing purchasers than by any information on the price paid, or assumptions made, by the vendor.

The case for disclosure

The weight of public concern about the number and distribution of affordable housing plots was deemed a significant factor.  So too was the fact, noted above, that the site was 'bought' in knowledge of the existing affordable housing obligation; if the public (through the Local Authority) was being asked to accept a lower level of provision then the public interest in openness about the figures justifying such a change is very strong. Regardless of the motivations of those seeking disclosure, the objective of the EIR, in this case, was to allow the public to have relevant factual information to be able to engage in the environmental decision making process. That intention could only be met here by exposure of sufficient information to allow a fully informed interrogation of the recommendation being put to the Members.

Our thoughts on the case

  • It must be a founding assumption, in the planning sphere, that information provided to a public authority will be disclosed;
  • Where confidential information is being passed, it should not be assumed that a "confidential" marking will survive even an initial engagement with the FOIA/ EIR regimes;
  • Assurances from public authorities, however genuinely offered, may not be determinative of the issue;
  • Developers ought to consider whether sufficient information can be made available to support an application without the need to pass over confidential information, even where it is available in a report; 
  • Whilst there is a fundamental difference between matters that are 'of interest to the public' and those that are 'in the public interest', there can be a cross-over; where an element of genuine public interest can be established, the reasons why individuals sought information in the first place are unlikely to be considered relevant; and
  • As there are other conflicting decisions which have been against disclosure of the full detailed models such cases are likely to be decided on a case by case basis.  What it does mean is that developers will be cautious about what they disclose which may affect the decision making of local authorities.

Decision of the First-Tier Tribunal: Royal Borough of Greenwich; The Information Commissioner; Shane Brownie: 30 January 2015 (EA/2014/0122)