“PUBLIC INTEREST FAVOURS DISCLOSURE” SAYS HIGH COURT JUDGMENT
In its judgment (See story above) the High Court said public interest in disclosing the requested information significantly outweighed other reasons.
“The public interests that favour disclosure are:
Transparency and participating in Decision ProcessThere 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 per cent affordable housing (subject to viability).
The EIR (Environmental Information regulations 2004) 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. …….
Redacting data would not provide the full picture. It is in the nature of the policy that funding affordable units while sustaining developer’s target profits tends to lead developers to seek higher prices, including from overseas buyers, from the remainder of the scheme.
Whilst the council considered the scheme to be small such that inevitably the number of affordable units would be small, the scale of the scheme is not itself a reason why the proportion of affordable units offered should be lower, and provision fell well below the 40pc policy or the 70pc assessed need.
There is no obvious reason why there should be different transparency standards for smaller schemes than for large.
There is no suggestion that the council had made a bad decision where it 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.
But this does not detract from the importance in transparency in this particularly important area. We were unimpressed by the suggestion that few members of the public could understand the disputed information or be able to make valid representations because of the technical nature ofviability assessments. Expert opinion can be brought to bear.
There is a deficit if only developers and planning departments have access to the information needed to form an opinion. Further, some of the information said to be sensitive or difficult to understand (for example that flats on higher floors or with better outlook can command a higher price) seems to be commonplace and generally well understood.
There is no doubt that affordable housing is of high public interest, and a premise of Information Rights is that there is value in the public having full opportunity to receive and review the information underlying policy choices and decisions.
The site is of importance and interest to the community and will have a significant impact on it and the local environment. The proposed development in its current form was not universally welcomed.
We consider that the public interest favouring withholding the information is that it constitutes the developer’s confidential information revealing how the developer has priced the scheme for the purpose of the viability assessment.
We consider this public interest to be significant because of the importance of respecting confidential information. However, on the facts of this case, it is vastly outweighed by the interests in disclosure set out above.
We note the argument that greater requirements of openness would result in developers making reports more generic and less useful. Our task is to consider the application of the EIR on the information request in this appeal.
We do not think disclosing this request would have resulted in developers providing information of less use to the council, because the council is required to satisfy itself that a greater level of affordable housing would not be possible, and the developer would need to provide sufficient information for it to do so………
We do not think that disclosure would have prejudiced London Square’s bargaining position.
With our luxury of hindsight, it seemed to us that if a developer fails to give proper reasons for confidentiality when asked more than once, this should be sufficient consultation. Otherwise, there is the potential for a reluctant developer to stall the EIR process and negate its potency to enable effective participation environmental decision-making.”