Perry, R (on the application of) v London Borough of Hackney & Ors

Disclosure in judicial review is governed by whether it is necessary to resolve the matter fairly and justly. Orders remain exceptional, and the court must guard against fishing expeditions. In planning cases involving financially sensitive viability assessments, the public interest in participation must be balanced against the developer’s legitimate interest in confidentiality and the authority’s need to obtain frank information. A gist or redacted assessment may be sufficient where disclosure of the underlying material would prejudice commercial negotiations. At the permission stage, overlapping proceedings and the risk that one decision may infect another are material considerations, but the claimant need show only that the grounds are arguable.

The claimant challenged two planning permissions and conservation area consents granted by the London Borough of Hackney for a mixed-use retail and residential development at Wilmer Place. The proceedings concerned applications for disclosure of viability assessments, permission to bring a second judicial review, linkage of the two claims, participation by the public authorities and interested party, a costs cap, and case management.

The claimant argued that confidential viability material was needed to assess the reduced affordable-housing provision and that the second permission was affected by errors in the first. The central issues were whether disclosure was necessary for fairness and whether the grounds in the second judicial review were arguable.

1. Disclosure. Applying Tweed v Parades Commission [2007] 1 AC 650, disclosure in judicial review is ordered only where it appears necessary to resolve the matter fairly and justly. It is generally exceptional, and the court must guard against fishing expeditions (paras [23]-[24]).
2. Financial viability assessments may properly be treated as confidential. The planning authority must be able to obtain detailed commercial information and negotiate with developers about affordable housing and other public benefits. The public interest therefore includes both public participation and preservation of commercially sensitive information (paras [25], [32]-[36]).
3. The court endorsed the approach in R (on the application of Bedford) v London Borough of Islington and Arsenal Football Club PLC [2002] EWHC 2044. The authority had balanced the public’s entitlement to information against the applicant’s entitlement to confidentiality. Disclosure of the requested reports was refused. R (on the application of English) v East Staffordshire Borough Council [2010] EWHC 2744 supported the conclusion that non-disclosure of financial material was not procedurally unfair where the competing interests had been balanced (paras [31]-[36]).
4. Permission in JR2. The claimant needed only to show that the grounds were arguable. The substantial overlap with JR1, and the risk that JR2 could be infected if JR1 were unlawful, made the first ground arguable. The interpretation and presentation of Core Strategy policy 20, the treatment of confidentiality and environmental information, the heritage-policy issues, and the adequacy of reasons were also arguable to varying degrees. Permission was granted on all grounds (paras [53]-[60]).
5. JR1 and JR2 were linked. The defendant and interested party were entitled to participate in JR1. A costs cap of £5,000 was imposed in each claim, with composite hearing and filing directions (paras [61]-[66]).