Perry, R (On the Application Of) v Newmark Properties Ltd & Ors

Confidential viability information supplied for planning negotiations may properly be withheld from councillors and objectors where it contains commercially sensitive material and the decision-maker receives a sufficient gist of the appraisal. Councillors may rely on officers and specialist advisers to sift technical material, provided they retain the ability to make the planning judgment themselves. A borough-wide affordable-housing target remains subject to site characteristics, location and scheme viability. In heritage cases, the statutory duties to have special regard and special attention require more than an ordinary balancing exercise, although they do not dictate refusal. A defective environmental-impact screening opinion does not necessarily require quashing where a later valid process establishes that no EIA was required and no substantial prejudice has resulted.

The claimant sought judicial review of two planning permissions granted by the London Borough of Hackney for redevelopment at Wilmer Place and Stoke Newington High Street. The scheme involved a food store, residential units, affordable housing and works affecting listed buildings, a conservation area and Abney Park Cemetery.

The challenges concerned the treatment and disclosure of viability appraisals, the assessment of heritage impacts, environmental-impact screening, the approach to the earlier permission, disclosure of the proposed section 106 agreement, and alleged irrationality and inadequate reasons. The court also considered whether procedural defects had caused substantial prejudice.

1. Viability and confidentiality. The financial viability appraisals contained commercially sensitive assumptions about build costs, sales values and residual values. They were confidential on a reasonable basis. The common-law rights of councillors to inspect documents are qualified: a councillor must have a good reason for access, and redaction may be appropriate. The statutory inspection regime preserved an exemption for financial or business information relating to terms proposed in negotiations for a contract. The appraisals related to negotiations for affordable-housing terms in the section 106 agreement.
2. Informed decision-making and fairness. Officers had lawfully sifted the technical material, obtained independent specialist advice and given members the gist of the appraisals, including the conclusion that 17 per cent affordable housing was the maximum reasonably achievable. Members were entitled to rely on that advice and could request more information if dissatisfied. There was no abdication by members or arrogation by officers. The claimant also received sufficient information to participate fairly in the planning process.
3. Affordable housing. The 50 per cent target in Hackney Core Strategy policy 20 was an aspiration subject to site characteristics, location and overall viability. A lower figure could be policy-compliant where the specified viability methodology had been used. No additional requirement for compelling viability matters arose.
4. Heritage assets. The duties under sections 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 required special regard or special attention to the desirability of preservation or enhancement. The exercise was not an ordinary balancing exercise. The reports nevertheless showed that the statutory duties had been applied, that the harm was less than substantial, and that the public benefits outweighed it. The reports were sufficiently clear when read fairly as a whole.
5. Environmental impact assessment. The earlier screening opinion could be relied upon because the amended proposal was on the same site, involved the same retail floorspace and was smaller in residential and volumetric terms. However, the opinion did not comply with regulation 4(7), because it gave no full reasons. The court declined to quash JR1: a valid screening opinion for JR2 reached the same conclusion, the claimant lost no opportunity to participate in an EIA process, and no substantial prejudice was shown.
6. Remaining grounds. Members were correctly told to determine JR2 afresh, while explaining any departure from the earlier decision. The delayed disclosure of the proposed section 106 agreement caused no substantial prejudice because its heads of terms were set out in the committee report. Both judicial-review claims were dismissed.

First-instance judicial review proceedings. Permission was granted in JR1 by Collins J on 17 December 2013 and in JR2 by Patterson J on 23 May 2014. The Court of Appeal refused permission to appeal on the disclosure issue, reported at [2014] EWCA Civ 137. This judgment dismissed both claims.