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

Factual and Procedural Background

The Plaintiff seeks quashing orders concerning two planning permissions and conservation area consents granted by the Defendant, the London Borough of Hackney, related to a mixed-use retail and residential development on land at Wilmer Place, London N16. The first permission and consent (JR1) was granted on 8 August 2013, and the second (JR2) on 14 February 2014. The applicant for both permissions was Company A.

Permission to proceed to a substantive hearing in JR1 was granted on 17 December 2013, with a hearing initially scheduled for 19 May 2014. On 8 May 2014, Judge Ouseley vacated the substantive hearing and ordered that the hearing on 19 May should address several preliminary issues including disclosure applications, permission for JR2, linkage of JR1 and JR2, participation of parties, cost caps, and case management directions.

The hearing proceeded on that basis, but judgment was reserved and is now provided addressing all these matters.

Legal Issues Presented

1. Whether the Plaintiff’s application for disclosure of un-redacted financial viability assessments and related documents should be granted in both JR1 and JR2.
2. Whether permission should be granted to proceed with JR2.
3. Whether JR2 should be linked with JR1 for procedural purposes.
4. The issue of participation of the Defendant and Company A in JR1 should JR2 proceed.
5. The appropriate cost cap for the judicial review proceedings.
6. Case management directions for the composite hearing.

Arguments of the Parties

Plaintiff's Arguments

• The financial viability assessments underlying the planning permissions were based on the same documents, which show that only 17% affordable housing is viable, whereas policy requires 50%.
• The reasons given for accepting the shortfall in affordable housing were not genuine reasons but faith-based decisions unsupported by disclosure of the underlying viability reports.
• The Plaintiff argued for disclosure of the full, un-redacted financial viability documents, asserting that commercial confidentiality should not prevent disclosure where no actionable breach of confidence arises.
• The Plaintiff relied on legal principles requiring disclosure where necessary for a fair resolution, citing authorities such as Smith Kline & French Laboratories Ltd v Attorney General and Tweed v Parades Commission.
• The Plaintiff contended that the Defendant misdirected the committee regarding confidentiality and failed to consider disclosure under the Environmental Information Regulations 2004.
• The Plaintiff submitted that the grant of permission in JR1 should be followed for consistency and that several grounds challenging the lawfulness of JR2’s permission were arguable.

Defendant's Arguments

• The Defendant submitted that disclosure should only be ordered if necessary to resolve the matter fairly and justly, emphasizing the importance of protecting confidential commercial information.
• The Defendant highlighted the risk of a "fishing expedition" by the Plaintiff and noted the absence of expert evidence challenging the viability assessments.
• Confidentiality of the financial viability information was crucial to enable effective negotiations between the local planning authority and developers, protecting commercial interests and public benefit.
• The Defendant argued that the Environmental Information Regulations process was separate and ongoing, and the committee’s consideration was proper including the provision of a redacted viability report to the Plaintiff.
• The Defendant maintained that the grounds of challenge in JR2 were not determinative and that the decision of Collins J in JR1 was a limited grant of permission not amounting to a finding of unlawfulness.

Company A's Arguments

• Company A supported the Defendant’s submissions, particularly on grounds overlapping with those raised by the Defendant.
• Company A submitted that disclosure is an exceptional remedy and not warranted here, as the documents sought were not relevant to any ground of challenge requiring disclosure.
• Company A contended that procedural fairness was maintained by the provision of a redacted financial viability appraisal and that public exclusion for confidential consideration was not necessary.
• Company A argued that the treatment of heritage policies was proper and supported by advice from English Heritage, with harm appropriately weighed against public benefit.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by considering the Plaintiff’s application for disclosure of un-redacted financial viability assessments and related documents. It applied the test from Tweed v Parades Commission that disclosure should be ordered only if necessary to resolve the matter fairly and justly. The court acknowledged the importance of protecting commercially sensitive information to enable effective negotiations between developers and local authorities, referencing the Bedford case which emphasized the public interest in confidentiality to facilitate planning benefits such as affordable housing.

The court noted that in JR1 no gist of the financial viability report was provided to the public or members, whereas in JR2 a redacted version was supplied. It found that the Plaintiff’s concerns about procedural unfairness due to lack of disclosure were mitigated by the provision of the redacted report in JR2 and that the Defendant had engaged in a proper balancing exercise of public interest factors.

The court rejected the Plaintiff’s submission that commercial confidentiality should not apply and found no basis to order disclosure, considering that such disclosure would constitute a misuse of sensitive information and potentially harm the planning process.

Regarding permission to proceed with JR2, the court held that the grounds raised were arguable, particularly because of the overlap with JR1 and the possibility that JR2 could be affected if JR1 was found unlawful. The court found the various grounds on policy interpretation, procedural fairness, heritage considerations, and reasoning to be sufficiently arguable to grant permission.

The court agreed that JR1 and JR2 should be linked for procedural efficiency and that the Defendant and Company A should participate in JR1. It also agreed on a cost cap of £5,000 for each claim and issued case management directions to streamline the hearing process.

Holding and Implications

The court GRANTED PERMISSION to proceed with JR2 on all grounds raised, recognizing the arguability of the claims and the interrelationship with JR1.

The court REFUSED the Plaintiff’s application for disclosure of the un-redacted financial viability assessments and related documents, concluding that the public interest in maintaining confidentiality outweighed the need for disclosure in this case.

The claims JR1 and JR2 are to be linked for procedural purposes, and both the Defendant and Company A are permitted to participate in JR1.

The cost cap for each judicial review is set at £5,000, and case management directions have been issued to facilitate an efficient composite hearing estimated to last 2-3 days.

No new legal precedent was established; the decision applies existing principles balancing disclosure against commercial confidentiality and procedural fairness in planning judicial reviews.