R Perry v London Borough of Hackney and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Briggs,Lady Justice Sharp,Lord Justice Underhill |
| Judgment Date | 23 October 2014 |
| Neutral Citation | [2014] EWCA Civ 1372 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 October 2014 |
| Docket Number | Case No: C1/2014/1942 |
[2014] EWCA Civ 1372
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT, QBD, ADMINISTRATIVE COURT
Mrs Justice Patterson
CO/1377/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
Lord Justice Sharp
and
Lord Justice Briggs
Case No: C1/2014/1942
Philip Coppel QC and Alex Goodman (instructed by RICHARD BUXTON ENVIROMENTAL AND PUBLIC LAW) for the APPELLANT
William Upton and Emmaline Lambert (instructed by LONDON Borough of Hackney) for the RESPONDENT
Reuben Taylor QC (instructed by Berwin Leighton Paisner LLP) for the INTERESTED PARTY
Hearing date: Friday 19 th September 2014
This is Mr. Perry's oral renewal of an application for permission to appeal (with appeal to follow) against Paragraph 5 of the Order of Patterson J, made on 23 rd May 2014, by which she refused his application for specific disclosure of documents for the purposes of two applications of his for judicial review, for one of which she gave permission by the same Order, and both of which she ordered to be heard together.
Mr. Perry's application for permission to appeal was refused on the papers by Sullivan LJ on 29 th July 2014, on the ground that, in his view, the judge was plainly correct in her conclusion that disclosure of the documents requested was not necessary for the purpose of deciding the issues raised by either of the applications for judicial review. On 2 nd September Patten LJ directed that Mr. Perry's oral renewal be heard, with appeal to follow if permitted, urgently in the vacation, in order to ensure, as far as possible, that the issue as to disclosure would be resolved in good time before the planned hearing of the judicial review applications in October.
Mr. Perry's application for disclosure raised issues both as to necessity (in the sense described above), and as to the alleged commercial confidentiality of the documents in question. In ruling against Mr. Perry's disclosure application, the judge dealt with both of those issues.
It seemed to us, early in the hearing of Mr. Perry's oral application, that he needed first to surmount the difficulties in his way represented by Sullivan LJ's adverse conclusion in relation to necessity, before any detailed analysis of the judge's approach to confidentiality need be addressed. Accordingly, we heard at length from Mr. Coppel QC for Mr. Perry, and briefly from Mr. Upton for the respondent, the London Borough of Hackney, and from Mr. Taylor QC for the interested party, Newmark Properties Limited, on the necessity question alone. Having considered those submissions, and counsel's detailed and helpful skeleton arguments, we concluded that the absence of any real basis for the assertion that disclosure of the documents in question was necessary for the purpose of dealing with the issues raised by the judicial review application was fatal to Mr. Perry's appeal. Accordingly, and in view of the urgency of the matter, we announced our decision to refuse him permission to appeal, stating that our written reasons would follow. This judgment contains my reasons for that conclusion.
It was broadly agreed between counsel that, in applications for judicial review, disclosure of documents would not be ordered unless it could be shown to be necessary to do so for the purpose of a just and fair determination of the issues. Mr. Coppel labelled that a 'relevance test' but he readily acknowledged, in response to a question from the court, that relevance meant necessity in the sense described above (rather than, for example, relevance in the sense that the word was understood in relation to discovery issues under the Rules of the Supreme Court, where it had, at least potentially, a wider meaning). Although considerable reference was made by counsel in their skeleton arguments to decided cases about disclosure in judicial review proceedings, the broad consensus between them as to the applicable test for present purposes made it unnecessary to review the reported cases either during the hearing, or in this judgment.
The issues to be determined in the conjoined judicial review applications are, as might be expected, identifiable by reference to the parties' statements of case, to which I shall shortly turn after a brief summary of the factual and procedural background. The two applications for judicial review seek respectively to quash successive planning permissions granted by Hackney on 8 th August 2013 and 14 th February 2014 in respect of a proposed development at Wilmer Place, London N16, comprising some 50 flats and a supermarket. It was, among other things, incumbent upon Hackney as planning authority to consider what if any requirement as to affordable housing should be included within the development, its relevant policy including a target, subject to viability, of 50% of the proposed housing. The documents of which disclosure was sought consisted, first, of viability assessments by G.L.Hearn, consultants engaged by the interested party as developer, and two successive reviews of the Hearn reports by Jones Lang LaSalle, consultants engaged by Hackney. As is apparent from a redacted copy of one of the Hearn Reports now made available, the reports both concluded that not more than 17% of affordable housing was viable (in the sense that a higher proportion would render the development uneconomic for the developer).
The Hackney planning sub-committee which determined both applications was not shown any of the requested documents. Rather, for both applications the case officer's report informed the committee of the receipt of the developer's viability report, its review by the council's external consultants, and of the 17% threshold which the viability assessment identified, and the council's consultants confirmed. Substantially the same procedure was adopted by the council's case officer in relation to both planning applications.
Mr. Perry's Statement of Facts and Grounds in...
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The Queen (on the application of Nicholas Perry) v London Borough of Hackney Newmark Properties Ltd and Another (Interested Parties)
...to appeal the disclosure of viability information aspect was refused by the Court of Appeal. Their judgement is to be found at [2014] EWCA Civ 1372. Factual background 11 Newmark Properties Limited (IP) first applied for planning permission on land at Wilmer Place and the rear parts of 193......