FOI request (FOI205220)

Viability Statement

Requested Mon 06 March 2017
Responded Mon 06 March 2017

I note that despite my request to consider this under EIR regulations you have only considered this under FOI regulations.

Prior to taking this to the ICO I would like to give you the opportunity to consider this under EIR as requested.

Appeals to the ICO have declared that viability statements can be made under EIR regulations.

For example Campaigners for the Heygate development made an EIR request to the council asking for a copy of the viability assessment.

Southwark council rejected the request. An Information Tribunal ruled in May 2014 that the viability assessment (minus 3 of its 22 appendices should be disclosed).

The Tribunal victory is significant because it ruled that viability assessments should be classified as environmental information under the Environmental Information Regulations (EIR) rather than FOI.

Following similar decisions concerning requests for viability information from campaigners in Earls Court & Greenwich Peninsula, the Information Commissioner now appears to have taken a position on the need for disclosure of viability information in planning decisions.

A similar request to obtain details of a viability study on the Heygate development has been reviewed by tribunal where it was decided that such information can be released . Please see http://35percent.org/heygate-foi-eir-tribunal/

The Heygate judgement can be seen at http://www.informationtribunal.gov.uk/DBFiles/Decision/i1279/London%20Borough%20of%20Southwark%20EA.2013.0162%20(09.05.14).pdf

A similar request to obtain details of a viability study on the Knight Dragon development has been reviewed where it was decided that such information can be released. Please see http://www.localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=21664:tribunal-tells-council-to-disclose-redactions-from-housing-viability-assessment&catid=1:latest-stories

The Knight Dragon judgement can be seen at https://ico.org.uk/media/action-weve-taken/decision-notices/2014/977128/fer_0524770.pdf

My original request included references to these decisions. I note that you have ignored them completely and not commented on any of these references.

I repeat my original request below.

Please take this as a formal request under EIR regulations.

Original Request

The committee report for this application HS/FA/13/337 refers to a viability statement for provision of affordable housing:

“A number of development contributions are required for a development of this size. These include affordable housing, contributions towards improvement of offsite play facilities and a contribution towards public art. During the pre-application discussions the applicant flagged up that there would be development viability issues with this site and that no contributions would be able to be provided. The viability report submitted with the application states the same. The applicant’s viability information was independently assessed on behalf of the Council and the outcome of this was there would be some money available towards development contributions. It was put to the applicant that a financial contribution could be made towards the provision of off site affordable housing in the Borough. The applicant has accepted this contribution.”

The viability statement is part of the planning application but is not available on the Planning web site.

An affordable housing contribution of 50,000 pounds was made on a development with an estimated Open Market Value of 15 million pounds.

Please be aware that there have been recent rulings allowing release of viability statements.

A similar request to obtain details of a viability study on the Heygate development has been reviewed by tribunal where it was decided that such information can be released . Please see http://35percent.org/heygate-foi-eir-tribunal/

The Heygate judgement can be seen at http://www.informationtribunal.gov.uk/DBFiles/Decision/i1279/London%20Borough%20of%20Southwark%20EA.2013.0162%20(09.05.14).pdf

A similar request to obtain details of a viability study on the Knight Dragon development has been reviewed  where it was decided that such information can be released. Please see http://www.localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=21664:tribunal-tells-council-to-disclose-redactions-from-housing-viability-assessment&catid=1:latest-stories

The Knight Dragon judgement can be seen at https://ico.org.uk/media/action-weve-taken/decision-notices/2014/977128/fer_0524770.pdf

Could you please provide me with a copy of the viability statement used to determine the affordable housing contribution of 50,000 pounds. Please consider this request under both the FOI and EIR 2004 regulations.

Response

Please accept my apologies for the delay in responding.

NOTICE OF REFUSAL

Under Environmental Information Regulations the information requested above exempt under Section 12(5)(e) ‘Confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest’

We have considered the following:

• Is the information commercial or industrial
• Is the information subject to confidentiality provided by law
• Is the confidentiality protecting a legitimate economic interest
• Would disclosure adversely affect the confidentiality

Section 12(5)(e) is subject to a public interest test.  This means that a public authority can refuse to disclose information under these exceptions if in all the circumstances of the case the public interest in maintaining the exception outweighs the public interest in disclosing the information.

Factors for disclosure:

1. Transparency and accountability

Factors against disclosure:

1. The viability includes cost/m2, excluding abnormal items, for dwellings that was based on The Park Lane Groups own construction costs that were arrived at from historic internal cost information that is specific to The Park Lane Group rather than generic m2 rates taken from BCIS data.

2. The viability included detailed costs for a number of site specific abnormal items.  These abnormal items were presented in the form of detailed measures and Bills Of Quantities that were costed using Park Lane Groups own historic rates that they have from previous projects and such rates have been secured through their supply chain of sub-contractors and material suppliers on previous developments/sites.

3. As part of the post submission discussions with the Council and their appointed consultant The Park Lane Group provided detailed breakdowns of the costs in relation to their Professional Fees and more importantly their Sales costs.

4. Should the viability be made available to our competitors, then that information would cause The Park Lane Group harm when tendering/bidding for future sites.  Our competitors would have an unfair advantage in forming an opinion on how The Park Lane Group would look to bid on future development sites and consequently this would have a harmful effect on the future business of The Park Lane Group.

For the reasons given above Hastings Borough Council will therefore not be disclosing a copy of the Viability Statement in relation to HS/FA/13/337 requested.