Equiom (Isle of Man) Ltd & Ors v London Borough of Croydon

Confidential viability information may be withheld in a planning application where confidentiality is justified, provided that the officer’s report is not misleading, the committee does not receive material information withheld from objectors, and the information is genuinely confidential.

In an Aarhus case, public participation and access to environmental information do not remove the proper protection of confidential information. A review mechanism for affordable housing is not mandatory in every case where a planning policy describes how such a mechanism may operate. A sequential test may be unnecessary where the proposed development is within the designated primary shopping area and applying the test would be futile.

The claimants, landowners and nominee companies connected with the Whitgift Centre, challenged the London Borough of Croydon’s grant of outline planning permission and conservation area consent for a major redevelopment. The challenge concerned the non-disclosure of confidential viability reports, the adequacy of affordable-housing provisions and the alleged failure to apply a sequential test for retail development.

The redevelopment required compulsory acquisition because the claimants did not consent to the scheme. The central issues were whether the planning committee had been misled or deprived of material information, whether a review mechanism for affordable housing was required, and whether the proposed retail development was subject to a sequential assessment.

1. Confidential viability information. The court held that confidential information supplied by a developer need not generally be disclosed in a planning application. The safeguards identified in R (Bedford) v London Borough of Islington [2003] Env LR 463 applied: the officer’s report must not mislead the committee and must include information materially affecting the decision; the committee must not receive and act on information withheld from would-be objectors; and the withheld information must genuinely be confidential. Confidentiality may properly exist at one stage of a development proposal even if it ceases to be justified later.
2. Aarhus participation. The requirements of Articles 6.3 and 6.4 of Directive 2011/92/EU did not displace justified confidentiality. The claimants had not been prejudiced because the information withheld did not prevent relevant objections, and the scheme’s viability could be considered in the compulsory purchase inquiry. The committee had not been misled or deprived of proper information.
3. Affordable housing. The Croydon planning policy did not require a review mechanism in every case. Where a scheme was desirable but could properly provide no more than the minimum affordable housing requirement, deciding not to include a review mechanism was a permissible planning judgment. The section 106 obligations and the residential marketing provisions were sufficiently positive and enforceable.
4. Sequential test. The proposed development was within the designated primary shopping area and the Croydon Metropolitan Centre. Treating it as an edge-of-centre development requiring a sequential test would have been artificial and futile. The development accorded with the relevant planning policy.
5. Disposition. The claim was dismissed.

First-instance judicial review proceedings in the Administrative Court. The claim challenging the grant of outline planning permission and conservation area consent was dismissed.