The Queen (on the application of Nicholas Perry) v The London Borough of Hackney Newmark Properties (SN) LLP and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 23 May 2014 |
| Neutral Citation | [2014] EWHC 1721 (Admin) |
| Docket Number | Case No: CO/1377/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 May 2014 |
[2014] EWHC 1721 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Patterson
Case No: CO/1377/2014
and CO/13423/2014
and
Philip Coppel QC, Alex GoodmanandRichard Clarke (instructed by Richard Buxton Environmental and Public Law) for the Claimant
William Upton and Emmaline Lambert (instructed by London Borough of Hackney) for the defendant
Reuben Taylor QC (instructed by Berwin Leighton Paisner LLP) for the Interested Parties
Hearing dates: 19th May 2014
Introduction
The claimant seeks quashing orders in respect of two planning permissions and conservation area consents granted by the defendant, the London Borough of Hackney, for a mixed use retail and residential development on land at Wilmer Place, London N16. The first planning permission and conservation area consent was granted on the 8 th August 2013 (CO/13423/2013). I will refer to this hereafter as JR1. The second was granted on the 14 th February 2014 (CO/1377/2014) and which I will refer to as JR2. On each occasion the applicant for planning permission and conservation area consent was Newmark Properties, the Interested Party.
Permission to proceed to a substantive hearing in JR1 was granted by Mr Justice Collins on the 17 th December 2013. That was listed to be heard on the 19 th May 2014.
On the 8 th May 2014 Mr Justice Ouseley vacated the substantive hearing in JR1 and ordered that the hearing on the 19 th May should take place to determine the following;—
i) The claimant's application for disclosure in each action of the un-redacted viability assessment and related documents;
ii) Whether permission should be granted for permission in JR2;
iii) Whether JR2 should be linked with JR1;
iv) The issue of participation of all parties at the substantive hearing of JR1 should it proceed if permission is refused in JR2;
v) The claimant's application for a cost cap in JR2;
vi) Case management directions.
The hearing before me proceeded on that basis. Due to a lack of court time it was not possible to give judgment at that hearing. This judgment deals with all of those matters. I invite the parties to agree and submit an order for approval to reflect this judgement.
I deal first with the issue of disclosure and whether permission should be granted in JR2.
Disclosure
The claimant has made a specific application for disclosure (i) of the GL Hearn Financial Assessment on the viability of the development proposed,(ii) of the Jones Lang LaSalle review of that assessment, and (iii) of any other information held relating to the above.
The claimant's case is that the planning applications which led to the first and second planning permission were based upon the same viability assessment. That assessment is said to show that the maximum proportion of housing that could viably be affordable is 17%. The policy requirement under the council's Core Strategy policy 20 is that for residential development of more than 10 dwellings 50% of the residential provision should be affordable housing.
JR1 was accompanied by a financial assessment by GL Hearn. That was independently appraised by consultants (Jones Lang Lasalle) acting for the defendant. At no stage has either document been disclosed to the claimant. In JR2 the claimant was provided with a redacted version of the GL Hearne document. At no stage was he given any version, redacted or otherwise, of the report prepared by James Lang Lasalle.
The report to committee which sets out why a figure of 17% affordable housing was in fact acceptable reads as follows:
"6.9.12 As less than 50% affordable housing is proposed a 'GLA Three Dragons' viability" appraisal is required to be submitted to accord with London Plan policy 3.12 and Hackney Core Strategy policy 20. This appraisal has been submitted along with additional explanatory information with regard to sales values build costs and information on the existing use value of the site.
6.9.13 The appraisal and accompanying information have been reviewed by external consultants appointed by Property Services surveyors. The appraisal shows that provision of affordable housing is constrained by the site constraints such as proximity to a number of heritage assets, which limits the scale of development that can accommodated on site. When taking into account the existing use value of the site, build costs and associated professional fees for the development, alongside potential sales values from residential units and rental yield from the proposed retail unit, the amount of affordable housing proposed is the maximum amount that can be reasonably achieved on the site.
6.9.14 It should be noted that the Core Strategy 50% affordable housing target was developed at a time when grant funding was available from the Homes and Communities Agency to deliver affordable housing. When such funding was available the Council's Affordable Housing Viability Study which forms part of the evidence base for the Core Strategy noted that 50% affordable housing would be achievable in a high number of scenarios. When grant funding is not available then the 50% affordable target is only achievable in a limited number of scenarios, usually involving sites with low existing use values.
6.9.15 Both London Plan and Core Strategy policies therefore recognise that the 50% target is an aspiration and not a minimum standard, and lower proportions may be acceptable. This needs to be assessed on a site specific basis taking into account scheme viability. It should also be noted that a greater amount of affordable housing has been submitted in comparison to the previously refused scheme on this site (ref: 2009/1264, see history section). In addition the amount of affordable housing has been fully justified in terms of viability. As such the Planning Service consider that the proposed affordable housing provision complies with Core Strategy Policy 20, London Plan policy 3.12 and emerging DMLP policy 21."
The claimant submits that the reasons given for why the short fall in meeting the affordable housing target was acceptable are in fact not reasons. The decision maker was being asked to make a faith based decision. The members did not have copies of the financial viability reports either. All they had was an officer giving his headline version of the appraisal contents. That does not equate to reasoning.
The claimant submits that the documents are highly relevant to the issue of financial viability and whether there was adequate provision of affordable housing.
The claimant submits further that commercial confidentiality cannot be claimed in respect of the documents sought to be disclosed. There is no actionable breach of confidence and there is no way that the law of confidentiality precludes a decision maker from looking at the documents. The law of confidentiality is only concerned to protect against misuse of information. There is no misuse of confidential information if it is used for a purpose that a reasonable person would consider reasonable having regard to the purpose for which it was imparted: see Smith Kline & French Laboratories Ltd v Attorney General [1990] 1 AC 64.
The public interest here supports the disclosure of the documents. The case of R (on the application of Bedford) v London Borough of Islington and Arsenal Football Club PLC [2002] EWHC 2044 relied on by the defendant and interested party was dealing with different circumstances.
The appropriate test for the court to apply is that set out in Tweed v Parades Commission [2007] 1 A C 650 where Lord Bingham said [3],
"The test will always be whether, in the given case disclosure appears to be necessary in order to resolve the matter fairly and justly.
Where a public authority relies on a document as significant to its decision it is ordinarily good practice to admit it as primary evidence. Any summary, however contentiously and skilfully made, may distort. But where the authority's opponent chooses to summarise the effect of a document it should not be necessary for the applicant, seeking sight of the document, to suggest some inaccuracy or incompleteness in the summary, usually an impossible task without sight of the document. It is enough that the document itself is the best evidence of what it says. There may, however, be reasons (arising, for example from confidentiality, or the volume of the material in question) why the document should or need not be exhibited."
In dealing with the application of disclosure in judicial review Lord Carswell said at [32],
"… I do consider, however, that it would now be desirable to substitute for the rules hitherto applied a more flexible and less prescriptive principle, which judges the need for disclosure in accordance with requirements of a particular case, taking into account the facts and circumstances. It will not arise in most applications for judicial review, for they generally raise legal issues which do not call for disclosure of documents. ……This object will be assisted if parties seeking disclosure continue to follow the practice where possible of specifying which particular documents or classes of documents they require…"
An application has been made for disclosure of the documents under the Environmental Information Regulations which has not yet been decided. However, neither the act nor the...
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