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Under scrutiny

A recent Information Tribunal ruling suggests that when it comes to planning decisions relating to historic buildings, public scrutiny trumps commercial confidentiality. However, writes Robin Hopkins, the judgement has left a number of unanswered questions.

To local authority lawyers involved in planning or information law, the pattern will be all too familiar. A developer applies for planning permission to demolish or convert a historic building. In accordance with statutory guidance, the application is accompanied by a report purporting to show alternative use of the current building to be unviable.

Objectors understandably wish to interrogate this ‘viability report’, and they request a copy under the Environmental Regulations 2004, younger sibling of the Freedom of Information Act 2000. The developer wishes to keep any sensitive commercial data contained in the viability report confidential. The sympathetic local authority therefore refuses to disclose the report, relying on the relevant exemption (regulation 12(5)(e)) under the EIR.

In such circumstances, which takes precedence: commercial confidentiality or public scrutiny? Following the Information Tribunal’s recent decision in Bristol City Council v IC and Portland and Brunswick Squares Association (EA/2010/0012), the answer would appear to be the latter.

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The Tribunal was – as Tribunals tend to be – at pains to deny that it was setting a broad precedent for full transparency in planning applications. Nevertheless, the upshot, in my view, is that it will now be very difficult to withhold viability reports or any other information which will be decisive in a planning decision about a historic building. This is arguably the most significant development in the intersection of planning and information law since the ‘Vauxhall Tower’ decision of 2007 (Baker v IC and Dept for Communities and Local Govt (EA/2006/0043)).

In order to digest and apply this case in practice, close attention to the underlying facts is required.

First, the buildings: a Coroner’s Court (Victorian; grade II listed; refurbishment and conversion proposed; in council ownership but with a conditional contract for sale to the developer) and an adjacent site (also Victorian; not listed, but in a conservation area; demolition proposed; already owned by the developer).

Next, the documents at issue: one was the developer’s viability report, the conclusion of which had been officially pronounced “not unreasonable” by an independent quantity surveyor. The second was a ‘feasibility costs report’ submitted by the developer. In short, the disputed information included the developer’s estimates as to both the costs of and the returns on alternative schemes for the site.

The chronology should also be noted: the Residents’ Association’s request for information was finally refused in April 2008. That was therefore the relevant date from an EIR perspective. Planning permission was granted in June 2008, but was swiftly subject to a judicial review challenge. The JR proceedings in turn were stayed pending the Information Tribunal’s decision.

Finally, the applicable planning guidance was PPG15, which provided that a listed building could only be demolished where there was “clear and convincing evidence that all reasonable efforts have been made to sustain existing uses or find viable new uses and these efforts have failed… or that redevelopment would produce substantial benefits for the community which would decisively outweigh the loss resulting from demolition” (paragraph 3.17).

As we shall see, the stringency of this test was fundamental to the Tribunal’s finding in this case. PPG15 further provided that proposals to demolish unlisted buildings which make a positive contribution to the character or appearance of a conservation area (as was agreed to be the case here) should be assessed against the same broad criteria as listed buildings (paragraph 4.27).

PPG15 has of course since been supplanted by PPS5, which retains a reconfigured version of the aforementioned principles, albeit with a hint of uncertainty about unlisted buildings in conservation areas (of which more anon).

With the foregoing facts in mind, we can examine the Tribunal’s reasoning on the engagement of the exemption and the public interest balance.

Contrary to the Information Commissioner’s decision, the Tribunal found that the exemption under regulation 12(5)(e) was engaged, notwithstanding the absence of any express reference to confidentiality in the correspondence or documents themselves, because the desire to cloak an economic interest in confidentiality was implicit in the context. The explicit and information-specific (rather than blanket) signposting of an expectation of confidentiality will, however, help to make the engagement of regulation 12(5)(e) less contentious.

The public interest factors favouring disclosure were listed as: (i) the viability report being a “major factor” in (ii) a controversial decision; (iii) the requirements of PPG15; (iv) the planning regime’s emphasis on the engagement of local residents, amenities societies and other interested parties; (v) the “particular scrupulousness” demanded of a Council when dealing with one of its own sites, and (vi) the mismatch in resources between the Council/developer on the one hand and the Residents’ Association on the other (the latter could not afford to commission a separate viability report of their own).

The public interest in maintaining commercial confidentiality was noted, but downgraded in this case due to a number of factors. Some were fact-specific but common enough: the absence of any express insistence on confidentiality by the developer, and the viability report’s use of general pricing levels in the construction industry and “hypothetical” (as opposed to actual) forecasts. The latter is a little mystifying, given that forecasting is an intrinsically hypothetical activity. In any event, “the most telling factor” against disclosure – namely that developers might refuse to supply viability reports if publicity is envisaged – was discounted because, where PPG15 applies, there simply cannot be a reasonable expectation of confidentiality.

In the end, it was not a close-run affair: the Tribunal found that the public interest in disclosure “substantially outweighed” that in maintaining the exemption. In the circumstances of this case, that decision must be right.

We can go further: a quick glance through the factors listed above reveals that the majority will apply to any planning decision about a historic building – hence the prescriptive force of this decision. Note this conclusion from the Tribunal: “so far as PPG15 viability reports are concerned, it seems to us that developers will not be able to refuse to supply them if they want to obtain the relevant consent but that, given their hypothetical nature, it may be possible for them to construct such reports in a way that does not reveal sensitive commercial information specific to themselves”. It is not entirely clear how this suggestion is to be implemented.

Further uncertainty comes from the Tribunal’s observation that “the result may have been different, for example, if the information had not been provided to satisfy the PPG 15 criteria or if the Council had not owned the Coroner’s Court building”.

This has two odd implications. One is that for historic buildings in private ownership, commercial confidentiality could prevail over the public interest in disclosure. The other is that if the building in question had been publicly-owned but non-historic, the Tribunal may still have reached the same conclusion. Given how large PPG15 loomed in this decision – compared with the question of public versus private ownership – both of these implications should be approached with caution.

A safer approach might be something like this: if a building is publicly-owned but not historic, disclosure may be required; if it is historic but privately-owned, disclosure is very likely to be required, and if it is both historic and publicly-owned, disclosure is (barring exceptional circumstances) virtually unavoidable. In all cases, the more controversial the planning application, the greater the public interest in transparency.

This unearths another question. PPS5 is expressed in terms of “heritage assets” rather than “buildings”. It is as yet unclear whether, in the case of a conservation area, the relevant heritage asset is the area as a whole (in which case the stringent test for demolition need not necessarily apply on a building-by-building basis), or whether each constituent building is itself a heritage asset (in which case the stringent test applies each time, and disclosure is likely to be required).

The first planning inquiry decision to straddle the PPG15 and PPS5 worlds (The Turnmill, 63 Clerkenwell Road, London (APP/V5570/E/09/2118167 and APP/V5570/A/09/2118166)) was not required to resolve this point. My prediction is that the Information Commissioner and Tribunal will presume the stringent test to apply until planning law says otherwise, or unless they are persuaded that the particular building in question is of insufficient merit to justify the level of public interest implicit in PPS5.

For those troubled by the unresolved questions from this crucial decision, I have tried to set out some rules of thumb in this article. In any event, it is safe to say that the Information Commissioner or Tribunal will be asked to wade into another controversial planning decision before too long.

Robin Hopkins is a barrister at 11KBW Chambers (www.11kbw.com). He specialises in information, public and employment law.

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