Clyne v Information Commissioner EA/2016/12
The First-Tier Tribunal, General Regulatory Chamber (Information Rights), in Clyne v Information Commissioner EA/2016/12 has found that the London Borough of Lambeth was wrong to refuse full disclosure of a developer's viability assessment and their independent viability review pursuant to a public request under the Environmental Information Regulation 2004 (EIR).
Regulation 12(1) of the EIR enables a public authority to refuse disclosure if:
"(a) an exception to disclosure applies under paragraphs (4) or (5); and
(b) in all circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information."
The relevant exception in this case was paragraph (5) which provides an exception to disclosure where it would adversely affect:
"(e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;"
On the first limb the Tribunal found that the Regulation 12(5)(e) exception applied. Specifically: the viability appraisals were commercial; a common law duty of confidentiality applied to them; it protected a legitimate economic interest (i.e. the developer's pricing of the development); and disclosure would adversely affect the developer (inter alia the pricing information would be available to competitors – although this was condered limited).
However, on the second limb the Tribunal found that the public interest in disclosing the information 'vastly outweighed' the public interest in maintaining the exception. The Tribunal's reasons were as followed:
(i) "There is much importance in transparency of viability assessments and reviews in allowing the public to interrogate the reasons a developer is unable to fulfil the core policy strategy on 40% affordable housing (subject to viability). The EIR objective is to allow the affected community to have relevant information in time to participate effectively in environmental decision-making, which would include before the planning permission was finalised…";
(ii) "In this case, the level of affordable units fell significantly below that level, and was less than the 2010 planning permission since when London property values had significantly increased. Whilst the Council considered that this was to be counter-balanced by certain improvements in the composition of the affordable housing element, there is a strong public interest in understanding why the policy in general is falling short of its targets. Redacting data would not provide the full picture…";
(iii) "There is no suggestion that the Council had made a bad decision where is considered the 2014 scheme to in some ways be an improvement on that of 2010. The committee unanimously favoured it and the GLA did not object, and the development was a private sector project. However, this does not detract from the importance in transparency in this particularly important area…";
(iv) "We note that the value of receiving the requested information is not lessened by either the planning application having gone through a thorough consultative process and was decided by the planning committee, or BNPP having conducted an extensive and expert independent review of viability. There is no doubt that affordable housing is of high public interest, and a premise of Information Rights is that thre is value in the public having full opportunity to receive and review the information underlying policy choices and decision"; and
(v) "The site is of importance and interest to the community and will have a significant impact on it and the local environment. The popsed development in its current form was not universally welcomed".
Accordingly, the Tribunal ruled that the viability appraisals should be disclosed.
Lesson: Whilst each case will depend upon its own faces, it seems highly likely that a full un-redacted copy of viability assessments and reviews will be disclosable under an EIR application where it is material to the local planning authority's considerations. Developers should be careful what information is therefore included in their viability assessments.
