Disclosure duties on planning decisions extended

Planning law expert Nicholle Kingsley of Pinsent Masons, the law firm behind Out-Law, said the court's judgment makes clear that the transparency and disclosure obligations applicable to local planning authorities have been tightened by the revised National Planning Policy Framework (the NPPF) and planning policy guidance (PPG) last year.

Kingsley said: "This case is significant and one which shows how release of information as part of planning decision making, including potentially confidential viability information, is to be considered a requirement unless there are ‘exceptional circumstances’, going further than previous case law. It is also a reminder of the legal requirements around committee papers and background documents also being available to the committee and members of the public."

Dr. Sue Chadwick, also of Pinsent Masons, said: "It was interesting that the Environmental Information Regulations were not referenced in this case because they may also have given the public a right to see information of this kind."

In this case the court considered a legal challenge to the grant of planning permission by the London Borough of Hackney for the redevelopment of a photography studio site in London.  Leaseholder Holborn Studios objected to the redevelopment plans and had been successful with a previous legal challenge against in 2015 resulting in the quashing of that decision.

In this case, revised plans for redevelopment were submitted with permission granted in 2019. However, Holborn Studios raised a fresh legal challenge, claiming among other things that the London Borough of Hackney had failed to disclose all the information it should have done concerning its decision on the application, in particular relating to documents on viability information.

While the council had made some information available, the High Court said the "material available in the public domain" contained "flaws", and found particular fault with the "opaque and unexplained" information regarding the financial viability assessment in respect of the application.

The High Court also commented that the council should have additionally published "the background material underpinning the viability assessment in the present case".  It was "a clear and material legal error in the decision-taking process" not to do so, it said.

Mr Justice Dove said in his ruling that the material provided to the public was not adequate to enable members of the public to make a sensible response to the consultation on the application. 

The London Borough of Hackney argued that, under the case law established in the 'Perry' case in 2014, it was not under an obligation to "place confidential information bearing upon the question of viability into the public domain". It claimed the information disclosed was "sufficient to enable an interested person to formulate their objection in relation to the application", and that the bulk of the "missing documentation" contained information that was exempt from disclosure under the Local Government Act 1972.

The 1972 Act makes provision for the right of the public to inspect "background papers" relating to council reports where the papers "disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and; have, in his opinion, been relied on to a material extent in preparing the report". The requirements on the disclosure of background papers are subject to certain exemptions and can include "information relating to the financial or business affairs of any particular person".

Mr Justice Dove rejected the London Borough of Hackney's claims of compliance with its disclosure obligations and also said it could not rely on an exemption under the 1972 Act to avoid disclosing the viability assessment. The judge reached that view after considering the wording of the revised NPPF and PPG published last year, concluding among other things that "in accordance with the [NPPF] viability assessments (where they are justified) should reflect the approach set out in PPG, and be made publicly available".

"The inputs and findings of a viability assessment should be set out 'in a way that aids clear interpretation and interrogation by decision-makers' and be made publicly available save in exceptional circumstances," the judge said. "As the PPG makes clear, the preparation of a viability assessment 'is not usually specific to that developer and thereby need not contain commercially sensitive data'. Even if some elements of the assessment are commercially sensitive, as the PPG points out, they can be aggregated in a published viability assessment so as to avoid disclosure of sensitive material."